Nebraska Law Review
Volume 94 | Issue 3
2016
Free Exercise and Substantial Burdens under
Federal Law
Mark Strasser
Capital University Law School, [email protected]
Follow this and additional works at: http://digitalcommons.unl.edu/nlr
Recommended Citation
Mark Strasser, Free Exercise and Substantial Burdens under Federal Law, 94 Neb. L. Rev. 633 (2015)
Available at: http://digitalcommons.unl.edu/nlr/vol94/iss3/4
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Article 4
Mark Strasser*
Free Exercise and Substantial
Burdens Under Federal Law
TABLE OF CONTENTS
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. The Ever-Changing Free Exercise Jurisprudence . . . . . .
A. Reynolds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Modern Jurisprudence Suggesting No Exemptions
Are Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. The Jurisprudence Does an About-Face . . . . . . . . . . . .
D. An Implicit Modification of the Jurisprudence? . . . . .
E. Back to Robust Protection? . . . . . . . . . . . . . . . . . . . . . . . .
F. Tepid Protection? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. The Congressional Response to the Court’s Free
Exercise Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. RLUIPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. RFRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. The Circuits’ Quandary . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
633
634
635
636
641
652
655
656
672
673
674
679
683
I. INTRODUCTION
While the First Amendment protects religious freedom, the contours of the right to practice one’s religion are not spelled out in the
Constitution. A series of cases decided by the United States Supreme
Court provides guidance with respect to the conditions under which
laws burdening religious practices will not violate federal constitutional guarantees. Those guarantees are rather forgiving for neutral
and general laws that incidentally burden religious practices, but statutes that target religious practices are unconstitutional unless narrowly tailored to promote compelling state interests.
Believing that the First Amendment as construed by the Court affords insufficient protection to free exercise, Congress passed two statutes to increase protections for religious practices—the Religious
© Copyright held by the NEBRASKA LAW REVIEW
* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.
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Freedom Restoration Act (RFRA)1 and the Religious Land Use and
Institutionalized Persons Act (RLUIPA).2 The protections provided by
these statutes are triggered only when substantial burdens are imposed on religious practice,3 and there is much disagreement about
what qualifies as a substantial burden. The United States Supreme
Court has sent mixed signals regarding how to define “substantial”
under federal statutory and constitutional law, and the circuits have
adopted different and conflicting tests with respect to which actions
are sufficiently burdensome to trigger the relevant protections. Unless the Court acts soon to clarify the relevant tests, the circuits are
likely to diverge even more, increasing the likelihood that the same
religious practices will be protected in one circuit but not in another.
Part II of this Article discusses the developing free exercise jurisprudence with a special focus on what constitutes a substantial burden on religious practice. Part III examines which burdens on free
exercise qualify as substantial under federal statutory law, and discusses some of the different tests used by circuits to determine
whether a burden on free exercise triggers the statutory protections.
The Article concludes by urging the Court to offer a clear standard
that might be applied consistently, although noting that the Court’s
inconsistent application of free exercise guarantees does not inspire
confidence that the Court will provide much useful guidance in this
area anytime soon.
II. THE EVER-CHANGING FREE EXERCISE JURISPRUDENCE
Free exercise jurisprudence has been developing for more than a
century, with one of the earlier cases—Reynolds v. United States4—
setting the stage in a number of respects. The issues addressed in
that case included the differing constitutional treatment of statutes
adversely affecting religious belief versus statutes adversely affecting
religious action, as well as the differing constitutional considerations
implicated by statutes targeting religion for adverse treatment rather
than merely incidentally burdening religious practice. Those issues
have remained important in contemporary free exercise
jurisprudence.
1. 42 U.S.C. §§ 2000bb to 2000bb-4 (1993).
2. 42 U.S.C. §§ 2000cc to 2000cc-5 (2000).
3. 42 U.S.C. § 2000bb(b)(1) (“The purposes of this chapter are . . . to restore the
compelling interest test . . . and to guarantee its application in all cases where
free exercise of religion is substantially burdened . . . .”); 42 U.S.C. § 2000cc-1
(“No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution.”).
4. 98 U.S. 145 (1878).
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FREE EXERCISE AND SUBSTANTIAL BURDENS
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Reynolds
One of the earliest cases setting the tone for free exercise analysis
was Reynolds v. United States, in which the Court examined the constitutionality of a federal polygamy prohibition containing no exemption for religiously motivated plural marriages.5 The Reynolds Court
acknowledged that “Congress cannot pass a law for the government of
the Territories which shall prohibit the free exercise of religion,”6 and
the question at hand was “whether the law now under consideration
comes within this prohibition.”7 To answer that question, the Reynolds Court attempted to ascertain “what is the religious freedom
which has been guaranteed.”8
While not explicitly announcing that it was using a Framers’ Intent test, the Reynolds Court talked about the views of some Framers9
and also considered the practices that had been prevalent at the time
the First Amendment was adopted. At that time, all states prohibited
polygamy,10 which presumably meant that those framing and adopting the First Amendment saw no contradiction in guaranteeing free
exercise while at the same time criminalizing plural marriage: “[I]t is
impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.”11
One issue raised in Reynolds (which continues to be important in
the contemporary jurisprudence) was whether the statute at issue was
targeting religion rather than incidentally affecting it.12 The Court
suggested the federal prohibition of polygamy did not target the
5. See id. at 166 (“[T]he statute . . . is constitutional and valid as prescribing a rule
of action for all those residing in the Territories, and in places over which the
United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted
from the operation of the statute.”).
6. Id. at 162.
7. Id.
8. Id.
9. See id. at 164 (discussing Jefferson’s interpretation: “Congress was deprived of all
legislative power over mere opinion, but was left free to reach actions which were
in violation of social duties or subversive of good order.”).
10. See id. at 165 (“[T]here never has been a time in any State of the Union when
polygamy has not been an offence against society, cognizable by the civil courts
and punishable with more or less severity.”).
11. Id.
12. Compare Todd M. Gillett, The Absolution of Reynolds: The Constitutionality of
Religious Polygamy, 8 WM. & MARY BILL RTS. J. 497, 533 (2000) (“The anti-polygamy laws in Reynolds and Davis v. Beason were based on hatred of the Mormon
Church.”), with Marc O. DeGirolami, Recoiling from Religion, 43 SAN DIEGO L.
REV. 619, 636 (2006) (discussing the view that the federal “statute did not target
Mormons in particular, but merely expressed a neutral public policy preference
against polygamy”).
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Church but was instead a statute of general applicability.13 This
meant that the issue presented was whether the Federal Constitution
required that the practices of the Latter Day Saints be granted an
exemption.14 The Court offered a few reasons for why such an exemption was not required, noting that recognizing an exemption would allow religious and non-religious people to be treated differently for
commission of the same act: “[T]hose who do not make polygamy a
part of their religious belief may be found guilty and punished, while
those who do, must be acquitted and go free.”15 The Court feared that
exempting those with sincere religious beliefs from the law “would be
to make the professed doctrines of religious belief superior to the law
of the land, and in effect to permit every citizen to become a law unto
himself,”16 suggesting that the law should not impose burdens on the
non-religious that the religious do not also have to bear.17
B.
Modern Jurisprudence Suggesting No Exemptions Are
Required
Reynolds suggests that while the First Amendment precludes the
legal regulation of religious belief, lawmaking bodies have been “left
free to reach actions which [a]re in violation of social duties or subversive of good order.”18 That attitude is also reflected in more modern
jurisprudence. For example, in Prince v. Massachusetts,19 the Court
examined whether child labor laws20 could be applied to children who
were distributing religious tracts21 pursuant to a religious calling.22
13. Reynolds, 98 U.S. at 166 (“[T]he statute immediately under consideration is
within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over
which the United States have exclusive control.”).
14. Id. (“This being so, the only question which remains is, whether those who make
polygamy a part of their religion are excepted from the operation of the statute.”).
15. Id.
16. Id. at 167.
17. Cf. City of Boerne v. Flores, 521 U.S. 507, 537 (1997) (Stevens, J., concurring)
(“[G]overnmental preference for religion, as opposed to irreligion, is forbidden by
the First Amendment.” (citing Wallace v. Jaffree, 472 U.S. 38, 52–55 (1985))).
18. Reynolds, 98 U.S. at 164.
19. 321 U.S. 158 (1944).
20. See id. at 160–61 (“No boy under twelve and no girl under eighteen shall sell,
expose or offer for sale any newspapers, magazines, periodicals or any other articles of merchandise of any description, or exercise the trade of bootblack or scavenger, or any other trade, in any street or public place.” (quoting MASS. GEN.
LAWS ch. 149, § 69 (1939))).
21. The Massachusetts Supreme Court construed the act of distributing religious
tracts in exchange for money as falling within the statute’s prohibition. See id. at
163 (“[T]he questions are no longer open whether what the child did was a ‘sale’
or an ‘offer to sell’ within section 69 or was ‘work’ within section 81. The state
court’s decision has foreclosed them adversely to appellant as a matter of state
law.”).
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Sarah Prince, the plaintiff, had permitted Betty Simmons to hand out
“Watchtower” and “Consolation” in exchange for donations.23
Prince argued that she had the constitutional right to permit her
ward “to preach the gospel”24 both because of her rights as a parent25—Prince had legal custody of Betty26—and by virtue of the constitutional protections for religious exercise.27 The Prince Court
recognized that the Constitution protects the “rights of children to exercise their religion, and of parents to give them religious training and
to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it.”28 But
that did not mean that Sarah Prince could expose her child to the dangers that might be associated with handing out unpopular literature
upon the streets.29 That an adult could not be precluded from preaching in this way did not establish that children were also free to do so.30
The Court held that no exception was required in this case for children
who sought to distribute literature for religious reasons in exchange
for donations.31
The Court continued the “No Exemption Required” approach in
Braunfeld v. Brown,32 which involved a challenge to a Pennsylvania
Sunday closing law.33 The appellants were Orthodox Jews who already closed their retail establishments from sundown Friday to sun22. Id. at 159 (“Sarah Prince appeals from convictions for violating Massachusetts’
child labor laws, by acts said to be a rightful exercise of her religious
convictions.”).
23. Id. at 162 (“Betty held up in her hand, for passersby to see, copies of ‘Watch
Tower’ and ‘Consolation.’ From her shoulder hung the usual canvas magazine
bag, on which was printed ‘Watchtower and Consolation 5¢ per copy.’ ”).
24. Id. at 164.
25. Id. (“She buttresses this foundation, however, with a claim of parental right as
secured by the due process clause of the latter Amendment.”).
26. Id. at 161 (“Mrs. Prince . . . has legal custody of Betty Simmons who lives with
them.”).
27. Id. at 164 (“[S]he rests squarely on freedom of religion under the First Amendment, applied by the Fourteenth to the states.”).
28. Id. at 165 (citing W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)).
29. See id. at 169–70 (“The zealous though lawful exercise of the right to engage in
propagandizing the community . . . may . . . create situations . . . wholly inappropriate for children, especially of tender years, to face. Other harmful possibilities
could be stated, of emotional excitement and psychological or physical injury.”).
30. Id. at 170 (“Parents may be free to become martyrs themselves. But it does not
follow they are free, in identical circumstances, to make martyrs of their children
before they have reached the age of full and legal discretion when they can make
that choice for themselves.”).
31. Cf. id. at 171 (noting that no children were permitted to do what Betty sought to
do).
32. 366 U.S. 599 (1961).
33. Id. at 600 (“This case concerns the constitutional validity of the application to
appellants of the Pennsylvania criminal statute, enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities.”).
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down Saturday because of their religious beliefs.34 Closing their
stores on Sunday in addition would put them at an economic disadvantage.35 One owner testified that the Sunday closing law might
cause him to go out of business.36 The Braunfeld Court acknowledged
that “appellants and all other persons who wish to work on Sunday
will be burdened economically by the State’s day of rest mandate.”37
In attempting to determine whether an exemption from the Sunday closing law was required for those whose religious observance required a day of rest on a different day of the week,38 the Court
reiterated a position that it had offered in Reynolds: “The freedom to
hold religious beliefs and opinions is absolute.”39 However, that same
degree of protection is not accorded to religious practice: “[T]he freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from legislative restrictions.”40 The Court
explained that because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,”41 it would be unreasonable to “expect[ ], much less require[ ], that legislators enact no
law regulating conduct that may in some way result in an economic
disadvantage to some religious sects and not to others because of the
special practices of the various religions.”42 Of course, that does not
mean that all legislation adversely affecting religious practice will
pass constitutional muster. “If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even
though the burden may be characterized as being only indirect.”43
Thus, where it is established that the statute at issue targets religious
practice, it will be struck down unless it passes a daunting test.44
34. Id. at 601 (“Each of the appellants is a member of the Orthodox Jewish faith,
which requires the closing of their places of business and a total abstention from
all manner of work from nightfall each Friday until nightfall each Saturday.”).
35. Id. (“Sunday closing will result in impairing the ability of all appellants to earn a
livelihood.”).
36. Id. (“Sunday closing . . . will render appellant Braunfeld unable to continue in his
business, thereby losing his capital investment.”).
37. Id. at 603.
38. Id. (“Our inquiry then is whether, in these circumstances, the First and Fourteenth Amendments forbid application of the Sunday Closing Law to
appellants.”).
39. Id. (emphasis added) (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940);
Reynolds v. United States, 98 U.S. 145, 166 (1878)).
40. Id.
41. Id. at 606.
42. Id.
43. Id. at 607.
44. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533
(1993) (“[I]f the object of a law is to infringe upon or restrict practices because of
their religious motivation, the law is not neutral . . . and it is invalid unless it is
justified by a compelling interest and is narrowly tailored to advance that inter-
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Suppose, however, that there is insufficient evidence to establish
that a burden placed on religious practice is invidiously discriminatory. The Braunfeld Court explained that “if the State regulates conduct by enacting a general law within its power . . . to advance the
State’s secular goals, the statute is valid despite its indirect burden on
religious observance unless the State may accomplish its purpose by
means which do not impose such a burden.”45 Thus, state regulations
imposing indirect burdens will generally be upheld unless the state
could achieve the goals at issue without burdening religion.
When suggesting that statutes indirectly burdening religion will be
struck down if the state can achieve its goals in other ways, the
Braunfeld Court was not thereby announcing a test that would be
very difficult for states to meet when imposing burdens on religious
practice. For example, the appellants argued that “the State should
cut an exception from the Sunday labor proscription for those people
who, because of religious conviction, observe a day of rest other than
Sunday.”46 The Court noted both that a “number of States provide
such an exemption,”47 and that “this may well be the wiser solution to
the problem.”48 But the focus of concern was “not with the wisdom of
legislation but with its constitutional limitation.”49 The Court then
discussed some of the possible benefits that might accrue by having a
uniform day of rest, noting that “permit[ting] the exemption might
well undermine the State’s goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity.”50 Of
course, the increase in commercial noise and activity would depend
upon how many stores would remain open (i.e., those exempted by virtue of observing a different Sabbath day). If relatively few would remain open, then one might not expect the atmosphere of peacefulness
and rest to be disturbed very much. However, if relatively few establishments were to take advantage of the exemption, then the Court
worried that those who were open would reap unfair economic advantages. “To allow only people who rest on a day other than Sunday to
keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must remain closed on that day.”51
45.
46.
47.
48.
49.
50.
51.
est.” (citing Emp’t Div., Dept. of Human Res. of Or. v. Smith, 494 U.S. 872,
878–79 (1990))).
Braunfeld, 366 U.S. at 607 (citing Cantwell v. Connecticut, 310 U.S. 296, 304–05
(1940)).
Id. at 608.
Id.
Id.
Id.
Id.
Id. at 608–09.
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There was no reason for the Court to hypothesize the kinds of competitive effects that Sunday closing laws with exemptions would have,
because various states had enacted such laws. If the Court’s suspicions about economic advantage were to have had some basis in fact,
then one would have expected those states providing such exemptions
to have had many problems. No such evidence was offered.52
In his concurring and dissenting opinion, Justice Brennan observed that the Court had “exalted administrative convenience to a
constitutional level high enough to justify making one religion economically disadvantageous.”53 Whether or not Justice Brennan’s criticism was correct, Braunfeld suggests that the Constitution does not
offer robust protection for free exercise, a position lent further support
by the holding in a companion case challenging the Massachusetts
Sunday closing law.54
In Gallagher v. Crown Kosher Super Market, Inc., a supermarket
almost exclusively selling kosher foods challenged the requirement
that it be closed on Sundays.55 Many of the hypothesized worries discussed in Braunfeld seemed inapplicable. For example, permitting
this store to remain open would presumably not greatly increase commercial traffic and activity, since it would be the only store in the area
open on Sunday.56 Further, given that it almost exclusively sold kosher goods,57 permitting the market to be open on Sunday would not
seem to afford the store much, if any, advantage over its non-kosher
competitors. Not only would the latter stores be open on Saturday
while this store would be closed,58 but the stores selling non-kosher
foods would likely be less expensive anyway,59 so non-kosher shoppers
planning ahead might well choose to buy less expensive non-kosher
goods on Saturday rather than kosher goods on Sunday.
52. See id. at 614–15 (Brennan, J., concurring in part and dissenting in part) (“We
are not told that those States are significantly noisier, or that their police are
significantly more burdened, than Pennsylvania’s. . . . The Court conjures up several difficulties with such a system which seem to me more fanciful than real.”).
53. Id.
54. See Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961).
55. Id. at 618 (“Crown Kosher Super Market, a corporation whose four stockholders,
officers and directors are members of the Orthodox Jewish faith, which operates
in Springfield, Massachusetts, and sells kosher meat and other food products
that are almost exclusively kosher.”).
56. See id. at 619 (“No other supermarket in the Springfield area had kept open on
Sunday.”).
57. Id. at 618.
58. Id. at 619 (“Since the Orthodox Jewish religion requires its members to refrain
from any commercial activity on the Sabbath—from sundown on Friday until
sundown on Saturday—Crown was not open during those hours.”).
59. See Elijah L. Milne, Protecting Islam’s Garden from the Wilderness: Halal Fraud
Statutes and the First Amendment, 2 J. FOOD L. & POL’Y 61, 66 (2006) (“[K]osher
food is often more expensive than non-kosher food . . . .”).
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The Court gave short shrift to Crown’s free exercise claim, dispensing with it in two paragraphs.60 Crown claimed that it “will be open
only four and one-half days a week, thereby suffering extreme economic disadvantage.”61 But “[t]hese allegations [were] similar, although not as grave, as those made by appellants in Braunfeld v.
Brown.”62 The Court reasoned that if the indirect burden on religion
at issue in Braunfeld was permissible even though it might result in
Braunfeld’s losing his business,63 then Crown’s claims about economic
disadvantage (not leading to financial ruin) could hardly win the day.
Yet, this analysis was at best incomplete because it focused exclusively on the costs associated with engaging in religious practice and
failed to consider the state interests promoted by the legislation.
While the Court may have been correct that the burden borne by
Crown was less onerous than that borne by Braunfeld, the Court simply did not address whether the state interests implicated in Braunfeld were also implicated in Gallagher. By failing to do so, the Court
implicitly suggested that if a state law is constitutional even though it
burdens free exercise to such an extent that it causes an individual to
go out of business, then any law imposing a lesser burden on free exercise of course also passes muster.
C.
The Jurisprudence Does an About-Face
The Court seemed to do an about-face in Sherbert v. Verner.64 At
issue was whether South Carolina could deny Adell Sherbert unemployment compensation when her unemployment was due to her refusal to work on her Sabbath, Saturday.65 The Court began its
analysis by suggesting that if the denial of unemployment compensation was to withstand constitutional review, that would be either (1)
“because her disqualification as a beneficiary represent[ed] no infringement by the State of her constitutional rights of free exercise,”66
or (2) “because any incidental burden on the free exercise of appellant’s religion [was] justified by a ‘compelling state interest in the reg60.
61.
62.
63.
64.
65.
See Gallagher, 366 U.S. at 630–31.
Id. at 630.
Id. at 631 (citing Braunfeld v. Brown, 366 U.S. 599 (1961)).
See supra text accompanying note 36.
374 U.S. 398 (1963).
Id. at 399–400 (“When she was unable to obtain other employment because from
conscientious scruples she would not take Saturday work, she filed a claim for
unemployment compensation benefits under the South Carolina Unemployment
Compensation Act.”); id. at 401 (“The appellee Employment Security Commission . . . found that appellant’s restriction upon her availability for Saturday work
brought her within the provision disqualifying for benefits insured workers who
fail, without good cause, to accept ‘suitable work when offered.’ ”).
66. Id. at 403.
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ulation of a subject within the State’s constitutional power to
regulate.’”67
The Court quickly dismissed (1), believing it obvious that Sherbert’s right to free exercise was burdened by the state.68 But the difficulty presented in Sherbert was that the infringement there, like the
infringement in Braunfeld, was only indirect. The state had not
criminalized her refusal to work on Saturday, but had merely refused
to construe her refusal to work for religious reasons as exempting her
from the program requirement that she accept suitable work when
offered.69
The Sherbert Court explained that the “appellant’s declared ineligibility for benefits derives solely from the practice of her religion,
[and] the pressure upon her to forego that practice is unmistakable.”70
Basically, South Carolina presented Sherbert with two options: (1)
“follow[ ] the precepts of her religion and forfeit[ ] benefits,”71 or (2)
“abandon[ ] one of the precepts of her religion in order to accept
work.”72
The surprising aspect of the Court’s analysis was not in its characterizing Sherbert’s situation as one involving a forced choice, but
rather its analysis of the import of her being forced to choose between
her religion and unemployment benefits. Braunfeld had also been afforded a forced choice—he had to choose between observing the Sabbath and keeping his business73—but nonetheless was not afforded an
exemption.74
Understanding that Braunfeld and Gallagher seemed difficult to
reconcile with Sherbert, the Sherbert Court reasoned that the Sunday
closing laws were “saved by a countervailing factor which finds no
equivalent in the instant case—a strong state interest in providing
one uniform day of rest for all workers.”75 Yet, many of the other
states with Sunday closing laws had provided exemptions for those
67. Id. (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).
68. Id. (“We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant’s religion. We think it is clear
that it does.”).
69. See id. (“[T]he consequences of such a disqualification to religious principles and
practices may be only an indirect result of welfare legislation within the State’s
general competence to enact; it is true that no criminal sanctions directly compel
appellant to work a six-day week.”).
70. Id. at 404.
71. Id.
72. Id.
73. Braunfeld v. Brown, 366 U.S. 599, 601 (1961) (“Sunday closing . . . will render
appellant Braunfeld unable to continue in his business, thereby losing his capital
investment.”).
74. See id. at 609 (“[W]e cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied.”).
75. Sherbert, 374 U.S. at 408.
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observing a Sabbath on a different day of the week,76 so the Court had
to explain why Pennsylvania and Massachusetts did not have to provide such an exemption. “Requiring exemptions for Sabbatarians,
while theoretically possible, appeared to present an administrative
problem of such magnitude, or to afford the exempted class so great a
competitive advantage, that such a requirement would have rendered
the entire statutory scheme unworkable.”77
The Court’s effort to distinguish Braunfeld and Gallagher was not
persuasive. The “administrative problem of such magnitude”78 to
which the Sherbert Court referred was described by Justice Brennan
in his Braunfeld concurrence and dissent as in reality a matter of
“mere convenience.”79 The great “competitive advantage”80 the Sherbert Court referenced was described by the appellants in Braunfeld as
“compensating somewhat for . . . closing on Saturday,”81 which hardly
sounds like much of a windfall. Several Justices made clear that the
efforts to differentiate between Braunfeld and Sherbert were
unavailing.82
Sherbert seemed to represent an important shift from Braunfeld
and Gallagher. The Braunfeld Court emphasized that “the statute at
bar does not make unlawful any religious practices of appellants.”83
Instead “the Sunday law simply regulates a secular activity and, as
applied to appellants, operates so as to make the practice of their religious beliefs more expensive.”84 While burdened to some extent,
those affected by the legislation were “not faced with as serious a
choice as forsaking their religious practices or subjecting themselves
to criminal prosecution.”85 Further, the Braunfeld Court implied that
as a general matter the Constitution should not be understood to preclude states from imposing indirect burdens on religious exercise. “To
strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
See supra text accompanying note 47.
Sherbert, 374 U.S. at 408–09.
Id.
Braunfeld, 366 U.S. at 614 (Brennan, J., concurring in part and dissenting in
part).
Sherbert, 374 U.S. at 409.
Braunfeld, 366 U.S. at 601.
See Sherbert, 374 U.S. at 417 (Stewart, J., concurring in the result) (“I cannot
agree that today’s decision can stand consistently with Braunfeld v. Brown.”); id.
at 421 (Harlan, J., dissenting) (“[D]espite the Court’s protestations to the contrary, the decision necessarily overrules Braunfeld v. Brown . . . which held that
it did not offend the ‘Free Exercise’ Clause of the Constitution for a State to forbid
a Sabbatarian to do business on Sunday.”).
Braunfeld, 366 U.S. at 605.
Id.
Id.
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radically restrict the operating latitude of the legislature.”86 The
Court was not saying that indirect burdens are immune from scrutiny—“to hold unassailable all legislation regulating conduct which
imposes solely an indirect burden on the observance of religion would
be a gross oversimplification.”87 Laws that invidiously discriminate
against religions generally or against one religion in particular will
not pass muster.88 However, general laws that incidentally burden
religion will not be struck down merely because they make religious
observance a little more difficult unless the state could have achieved
its goals without burdening religion.89
Sherbert set a much different tone. The Court recognized that the
case before it was similar to Braunfeld in that the state practice at
issue in Sherbert was an indirect burden on free exercise: “[T]he consequences of such a disqualification to religious principles and practices
may be only an indirect result of welfare legislation within the State’s
general competence to enact.”90 Criminal laws were not at issue because “no criminal sanctions directly compel appellant to work a sixday week.”91 However, rather than suggest that a law imposing only
an indirect burden would likely be upheld,92 the Court instead noted
that the fact that the burden was indirect “is only the beginning, not
the end, of our inquiry.”93 This time, instead of characterizing the law
as merely “operat[ing] so as to make the practice of their religious beliefs more expensive,”94 the Court reasoned that the challenged statute “puts the same kind of burden upon the free exercise of religion as
would a fine imposed against appellant for her Saturday worship.”95
When analyzing whether South Carolina’s eligibility law passed
constitutional muster, the Court sought to determine whether “some
compelling state interest enforced in the eligibility provisions of the
South Carolina statute justifies the substantial infringement of appel86. Id. at 606.
87. Id. at 607.
88. Id. (“If the purpose or effect of a law is to impede the observance of one or all
religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only
indirect.”).
89. See id. (“But if the State regulates conduct by enacting a general law within its
power, the purpose and effect of which is to advance the State’s secular goals, the
statute is valid despite its indirect burden on religious observance unless the
State may accomplish its purpose by means which do not impose such a
burden.”).
90. Sherbert v. Verner, 374 U.S. 398, 403 (1963).
91. Id.
92. See supra text accompanying note 82.
93. Sherbert, 374 U.S. at 403–04.
94. Braunfeld, 366 U.S. at 605.
95. Sherbert, 374 U.S. at 404.
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lant’s First Amendment right.”96 This approach was in direct contrast
to what had been employed in assessing the constitutionality of the
Sunday closing law. There, the Court admitted that it might be wiser
to afford Sabbatarians an exemption, but reasoned that the Court’s
concern was “not with the wisdom of legislation but with its constitutional limitation.”97 Thus, the Braunfeld Court used a test far more
deferential than the compelling interest test used in Sherbert. The
Braunfeld Court seemed to require that strict scrutiny be satisfied
before legislation imposing an indirect burden on free exercise could
be struck down,98 whereas the Sherbert Court seemed to require that
strict scrutiny be satisfied before legislation indirectly burdening free
exercise could be upheld.99
United States v. Seeger100 seemed to provide further support that
free exercise jurisprudence had undergone a sea-change, although the
opinion was focused on the construction of a federal statute. “[T]he
Universal Military Training and Service Act . . . exempts from combatant training and service in the armed forces of the United States those
persons who by reason of their religious training and belief are conscientiously opposed to participation in war in any form.”101 “Religious
training and belief” was defined as “an individual’s belief in a relation
to a Supreme Being involving duties superior to those arising from
any human relation, but (not including) essentially political, sociological, or philosophical views or a merely personal moral code.”102 The
section was challenged as an alleged violation of First Amendment
guarantees.103
Rather than address the constitutional issues, the Court explained
that Congress “was merely clarifying the meaning of religious training
and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views.”104 But that was not all.
The Court interpreted the exemption as being triggered whenever “a
given belief that is sincere and meaningful occupies a place in the life
of its possessor parallel to that filled by the orthodox belief in God of
one who clearly qualifies for the exemption.”105 This meant that an
96. Id. at 406.
97. Braunfeld, 366 U.S. at 608.
98. See id. at 606 (“To strike down, without the most critical scrutiny, legislation
which imposes only an indirect burden on the exercise of religion, i.e., legislation
which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.” (emphasis added)).
99. See supra text accompanying note 82.
100. 380 U.S. 163 (1965).
101. Id. at 164–65 (citing 50 U.S.C. app. § 456(j) (1958)).
102. Id. at 165.
103. Id. (“The constitutional attack is launched under the First Amendment’s Establishment and Free Exercise Clauses . . . .”).
104. Id.
105. Id. at 166.
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individual, Daniel Seeger, who had a “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely
ethical creed”106 could nonetheless qualify for the exemption.107
Seeger, who neither affirmed nor denied a belief in God’s existence
but instead “preferred to leave the question as to his belief in a Supreme Being open, rather than answer ‘yes’ or ‘no,’ ”108 nonetheless
suggested that his refusal to participate in any war qualified as religious.109 In contrast, the plaintiff in Welsh v. United States,110 Elliot
Welsh II, denied that his views were religious.111 However, the Court
did not accept his denial at face value, reasoning that “very few registrants are fully aware of the broad scope of the word ‘religious’ as used
in s 6(j), and accordingly a registrant’s statement that his beliefs are
nonreligious is a highly unreliable guide for those charged with administering the exemption.”112 Concluding that section 6(j) “exempts
from military service all those whose consciences, spurred by deeply
held moral, ethical, or religious beliefs, would give them no rest or
peace if they allowed themselves to become a part of an instrument of
war,”113 the Court held that Welsh was also entitled to an
exemption.114
Seeger and Welsh both suggest that free exercise protection is to be
construed broadly.115 While those cases involved statutory construction rather than constitutional interpretation,116 many commentators
106. Id.
107. Id. at 187 (“In light of his beliefs and the unquestioned sincerity with which he
held them, we think the Board, had it applied the test we propose today, would
have granted him the exemption.”).
108. Id. at 166.
109. See id. at 167 (“Seeger’s counsel . . . contended that he was entitled to the exemption because ‘under the present law Mr. Seeger’s position would also include definitions of religion which have been stated more recently,’ and could be
‘accommodated’ under the definition of religious training and belief in the Act.”).
110. 398 U.S. 333 (1970).
111. Id. at 341 (“Welsh was far more insistent and explicit than Seeger in denying that
his views were religious.”).
112. Id.
113. Id. at 344.
114. Id. at 343 (“Welsh was clearly entitled to a conscientious objector exemption.”).
115. See Jeffrey L. Oldham, Note, Constitutional “Religion”: A Survey of First Amendment Definitions of Religion, 6 TEX. F. ON C.L. & C.R. 117, 168 (2001) (“Several
scholars have argued that the Religion Clauses were not intended to protect just
religious beliefs . . . but instead were designed to protect a broader set of beliefs. . . . [T]his is what the Court effectively stated . . . in Seeger and Welsh—its
broadest extensions of the First Amendment.”); Sherryl E. Michaelson, Religion
and Morality Legislation: A Reexamination of Establishment Clause Analysis, 59
N.Y.U. L. REV. 301, 353 (1984) (discussing “whether the expansive definitional
approach of Seeger and Welsh is limited to the free exercise clause”).
116. See Samuel J. Levine, Rethinking the Supreme Court’s Hands-Off Approach to
Questions of Religious Practice and Belief, 25 FORDHAM URB. L.J. 85, 99 n.62
(1997) (“In Seeger and Welsh, the Court made clear that it was interpreting not
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have interpreted those decisions as having constitutional import.117
The Court seemed quite confident that forcing an individual who objected to all wars to participate in one would impose a heavy burden
on that individual—the Seeger Court discussed Seeger’s belief concerning “the tremendous ‘spiritual’ price man must pay for his willingness to destroy human life,”118 and the Welsh Court noted that the
section “exempts from military service all those whose consciences,
spurred by deeply held moral, ethical, or religious beliefs, would give
them no rest or peace if they allowed themselves to become a part of
an instrument of war.”119
In cases where the Court upheld or extended the application of a
conscientious objector exemption, one would expect the Court to say
that forcing such individuals to participate in war constituted a great
burden on free exercise. But one might expect the Court to adopt a
different tack in a case holding that no exemption was required, conscientious objection to war notwithstanding. After all, the refusal to
afford an exemption would be upheld only if no substantial burden
were imposed or if the state interests were sufficiently important to
justify the imposition of a substantial burden on free exercise.
Gillette v. United States120 involved individuals with sincere conscientious objections to participating in the Vietnam War in particular.121 Louis Negre, a devout Catholic, followed his religious tradition
of distinguishing between just and unjust wars and was only willing to
participate in the former.122 Once he concluded that the Vietnam War
was unjust, he was precluded by conscience from participating in the
war effort.123 Guy Gillette would have been willing to participate in a
defensive war sponsored by the United Nations, but believed the Viet-
117.
118.
119.
120.
121.
122.
123.
the word ‘religion’ found in the Free Exercise Clause of the Constitution, but only
the term ‘religious training and belief’ used in a congressional statute exempting
conscientious objectors from military training and service.”).
Cf. Michaelson, supra note 115, at 330 (“[C]ommentators uniformly . . . maintain
that the Seeger-Welsh definition reflects constitutional, and not merely statutory,
interpretation.”).
United States v. Seeger, 380 U.S. 163, 187 (1965).
Welsh, 398 U.S. at 344.
401 U.S. 437 (1971).
Id. at 439 (“These cases present the question whether conscientious objection to a
particular war, rather than objection to war as such, relieves the objector from
responsibilities of military training and service.”).
Id. at 440–41 (“Negre, a devout Catholic, believes that it is his duty as a faithful
Catholic to discriminate between ‘just’ and ‘unjust’ wars, and to forswear participation in the latter.”).
Id. at 441 (“His assessment of the Vietnam conflict as an unjust war became clear
in his mind after completion of infantry training, and Negre is now firmly of the
view that any personal involvement in that war would contravene his conscience
and ‘all that I had been taught in my religious training.’ ”).
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nam War unjust “based on a humanist approach to religion.”124 The
sincerity of these beliefs was not at issue.125
As an initial matter, the Gillette Court had to determine whether
the current conscientious objector statute exempted Negre and Gillette.126 Focusing on the text of the provision at issue, the Court construed the exemption as only applying to individuals objecting to war
in any form.127 Individuals with conscientious objections to participation in a particular war did not qualify for an exemption.128 But the
question then became whether the refusal to afford the exemption to
those with religious objections to participating in the Vietnam War in
particular passed constitutional muster. The Court accepted that
“even as to neutral prohibitory or regulatory laws having secular
aims, the Free Exercise Clause may condemn certain applications
clashing with imperatives of religion and conscience, when the burden
on First Amendment values is not justifiable in terms of the Government’s valid aims.”129 Rather than question whether the requirement
imposed a cognizable burden,130 the Court noted instead that the requirements were not designed to burden religion131 and that those
burdens were justified by the importance of the state interests at issue.132 Thus, the Court did not question whether forcing individuals
to participate in a particular war against their religious convictions
constituted a substantial burden, but instead held that the state had
sufficiently important interests that justified maintaining a draft
where only those objecting to all wars were exempted.133
124. Id. at 439.
125. Id. at 440 (“The denial of [Gillette’s] exemption was upheld . . . not because of
doubt about the sincerity or the religious character of petitioner’s objection to
military service . . . .”); id. (“[N]o question is raised as to the sincerity or the
religious quality of this petitioner’s views.”).
126. Id. at 441.
127. Id. at 443 (“This language, on a straightforward reading, can bear but one meaning; that conscientious scruples relating to war and military service must amount
to conscientious opposition to participating personally in any war and all war.”).
128. Id. at 447 (“[P]ersons who object solely to participation in a particular war are not
within the purview of the exempting section, even though the latter objection
may have such roots in a claimant’s conscience and personality that it is ‘religious’ in character.”).
129. Id. at 462.
130. Cf. id. at 460 (“[I]t is not inconsistent with orderly democratic government for
individuals to be exempted by law, on account of special characteristics, from general duties of a burdensome nature.”).
131. Id. at 462 (“The conscription laws, applied to such persons as to others, are not
designed to interfere with any religious ritual or practice . . . .”).
132. Id. (“The incidental burdens felt by persons in petitioners’ position are strictly
justified by substantial governmental interests that relate directly to the very
impacts questioned.”).
133. Id. at 461 (“[O]ur analysis of [section] 6(j) for Establishment Clause purposes has
revealed governmental interests of a kind and weight sufficient to justify under
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Wisconsin v. Yoder134 also seemed to involve robust protection of
free exercise, although that case was characterized in Employment Division v. Smith135 in a way belying that interpretation.136 Yoder involved Amish families who refused to send their children to high
school, notwithstanding state law that required children to attend
school until reaching the age of sixteen.137 The Amish parents objected because the values taught in that setting were “in marked variance with Amish values and the Amish way of life.”138 Public high
school “emphasize[s] intellectual and scientific accomplishments, selfdistinction, competitiveness, worldly success, and social life with other
students,”139 whereas in contrast “Amish society emphasizes informal
learning-through-doing; a life of ‘goodness,’ rather than a life of intellect; wisdom, rather than technical knowledge, community welfare,
rather than competition; and separation from, rather than integration
with, contemporary worldly society.”140 Sending Amish children to
high school “takes them away from their community, physically and
emotionally, during the crucial and formative adolescent period of
life.”141 The Court summed up the burden imposed by the compulsory
schooling provision by suggesting that “high school attendance with
teachers who are not of the Amish faith—and may even be hostile to
it—interposes a serious barrier to the integration of the Amish child
into the Amish religious community.”142
The Yoder Court reasoned that Wisconsin’s requirement that students attend school beyond the eighth grade in contravention of religious beliefs would pass muster only if “the State does not deny the free
exercise of religious belief by its requirement, or that there is a state
interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.”143 The Court noted the district court’s “careful findings . . . that the Wisconsin compulsory
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
the Free Exercise Clause the impact of the conscription laws on those who object
to particular wars.”).
406 U.S. 205 (1972).
494 U.S. 872 (1990).
Id. at 881 (“The only decisions in which . . . the First Amendment bars application
of a neutral, generally applicable law to religiously motivated action have involved . . . the Free Exercise Clause in conjunction with other constitutional protections, such as . . . the right of parents . . . to direct the education of their
children.” (citing Yoder, 406 U.S. at 205)).
Yoder, 406 U.S. at 207 (“Wisconsin’s compulsory school-attendance law required
them to cause their children to attend public or private school until reaching age
16 but the respondents declined to send their children, ages 14 and 15, to public
school after they complete the eighth grade.”).
Id. at 211.
Id.
Id.
Id.
Id. at 211–12.
Id. at 214.
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school-attendance law does interfere with the freedom of the Defendants to act in accordance with their sincere religious belief,”144 accepting that “enforcement of the State’s requirement of compulsory
formal education after the eighth grade would gravely endanger if not
destroy the free exercise of respondents’ religious beliefs.”145 The
Court then set out the standard that would have to be met to justify
such a burdening of religion—“[O]nly those interests of the highest
order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion.”146
The Yoder Court understood that the burden imposed was a daunting one, and then sought to cabin the cases in which it would be triggered. “A way of life, however virtuous and admirable, may not be
interposed as a barrier to reasonable state regulation of education if it
is based on purely secular considerations; to have the protection of the
Religion Clauses, the claims must be rooted in religious belief.”147
However, after emphasizing the importance of the difference between
the religious and the purely secular,148 the Court failed to provide a
helpful principle to distinguish between the two,149 instead merely offering an example: “[I]f the Amish asserted their claims because of
their subjective evaluation and rejection of the contemporary secular
values accepted by the majority, much as Thoreau rejected the social
values of his time and isolated himself at Walden Pond, their claims
would not rest on a religious basis.”150 Regrettably, no criteria were
offered to help clarify how “Thoreau’s choice was philosophical and
personal rather than religious.”151 It was unclear from the opinion
whether the Court was expressing disapproval of Seeger—there, the
Court accepted that the beliefs at issue were religious in the relevant
sense when Seeger cited the writings of “such personages as Plato,
Aristotle and Spinoza for support of his ethical belief in intellectual
and moral integrity without belief in God, except in the remotest
sense.”152 But Plato, Aristotle, and Spinoza were all philosophers, so
Seeger suggests that an individual’s basing her opinions on philosophical writings helps make those sincere convictions religious in the relevant sense. Perhaps the Yoder Court was not rejecting that
144.
145.
146.
147.
148.
149.
150.
151.
152.
Id. at 213 (internal quotation marks omitted).
Id. at 219.
Id. at 215.
Id.
Id. at 215–16 (“[T]he very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole
has important interests.”).
Id. (“[A] determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question . . . .”).
Id. at 216.
Id.
United States v. Seeger, 380 U.S. 163, 166 (1965) (internal quotation marks
omitted).
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philosophical analysis could be the basis of religious belief,153 but was
instead simply suggesting that idiosyncratic choices would not count
as religious, since “the traditional way of life of the Amish is not
merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily
living.”
Once establishing that the law burdened religious exercise, the
Yoder Court sought to determine whether the state had sufficiently
important interests to justify the imposition of that burden.154 For
example, Wisconsin had argued that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in
our open political system if we are to preserve freedom and independence”155 and that “education prepares individuals to be self-reliant
and self-sufficient participants in society.”156 While these were and
are compelling interests,157 a separate issue was whether the means
chosen were sufficiently tailored to promote those ends.158
Children who remained in the Amish community would likely not
benefit much from the extra couple of years of schooling.159 Even
those who would leave the Amish community might not gain that
much from the additional year or two of education,160 and those individuals might well flourish in any event “with their practical agricultural training and habits of industry and self-reliance.”161 The
Court’s focus on the additional benefit that high school students might
receive from the extra year or two meant the Court closely examined
whether the attendance requirement was sufficiently narrowly tai153. Cf. William C. French, Natural Law and Ecological Responsibility: Drawing on
the Thomistic Tradition, 5 U. ST. THOMAS L.J. 12, 33 (2008) (“Most Catholics who
sustain an interest in the natural law today follow the ‘order of reason’ view,
which states that the natural law is primarily about the common structures of
human reason by which all persons—regardless of culture or nation—are able to
affirm and be guided.”).
154. Yoder, 406 U.S. at 221 (“We turn, then, to the State’s broader contention that its
interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way.”).
155. Id.
156. Id.
157. See id. (“We accept these propositions.”).
158. See id. at 222.
159. See id. (“[C]ompulsory education for a year or two beyond the eighth grade may
be necessary when its goal is the preparation of the child for life in modern society as the majority live, but [not] . . . if the goal . . . [involves] the preparation of
the child for life in the separated agrarian community that is the keystone of the
Amish faith.”).
160. See id. (“[T]he evidence adduced by the Amish in this case is persuasively to the
effect that an additional one or two years of formal high school for Amish children
in place of their long-established program of informal vocational education would
do little to serve those interests.”).
161. Id. at 224.
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lored to promote the state’s compelling interests to justify the burden
being placed on free exercise.162
D.
An Implicit Modification of the Jurisprudence?
The Court may have modified what qualifies as a substantial burden for free exercise purposes in Johnson v. Robison,163 although it is
difficult to tell because that modification was at most implicit rather
than explicit. At issue was whether conscientious objectors could be
denied the education benefits that those who had been active in the
military were entitled.164 Congress created this benefit to ease the
transition from military to civilian life.165 While the lives of conscientious objectors who performed alternative service also had their lives
disrupted,166 the term of service was shorter than and different from
the term of service of those who served in the military.167
The Robison Court rejected the claim that affording educational
benefits to those in the military and not to those in alternative service
was invidiously discriminatory. “When . . . the inclusion of one group
promotes a legitimate governmental purpose, and the addition of
other groups would not, we cannot say that the statute’s classification
of beneficiaries and nonbeneficiaries is invidiously discriminatory.”168
The motivation behind the differentiation was not to target conscientious objectors—the Court rejected that there was “any legislative design to interfere with their free exercise of religion.”169 Instead, the
“withholding of educational benefits involve[d] only an incidental burden upon appellee’s free exercise of religion,”170 because extending
162. Id. at 221 (“[W]e must searchingly examine the interests that the State seeks to
promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish
exemption.”).
163. 415 U.S. 361 (1974).
164. Id. at 362–63 (“A draftee accorded Class I—O conscientious objector status and
completing performance of required alternative civilian service does not qualify . . . as a ‘veteran who . . . served on active duty,’ . . . and is therefore not an
‘eligible veteran’ entitled . . . to veterans’ educational benefits.”).
165. Id. at 379 (“Uprooted from civilian life, the military veteran becomes part of the
military establishment, subject to its discipline and potentially hazardous duty.
Congress was acutely aware of the peculiar disabilities caused by military service, in consequence of which military servicemen have a special need for readjustment benefits.”).
166. Id. at 378 (discussing “conscientious objectors who have performed alternative
civilian service . . . [whose] lives . . . were . . . disrupted and . . . in need of
readjustment”).
167. Id. (“A conscientious objector performing alternative service is obligated to work
for two years. Service in the Armed Forces, on the other hand, involves a six-year
commitment.”).
168. Id. at 383.
169. Id. at 385.
170. Id.
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those benefits to conscientious objectors “would not rationally promote
the Act’s purposes.”171
The provision of educational benefits was designed to “make military service more attractive,”172 so an individual might be more willing to serve in the military if accorded those benefits.173 However, one
precluded by conscience from serving would presumably be unwilling
to serve even if offered educational benefits. “[B]ecause a conscientious objector bases his refusal to serve in the Armed Forces upon
deeply held religious beliefs, we will not assume that educational benefits will make military service more attractive to him.”174 The Court
thereby implied that it was reasonable not to offer those benefits to
conscientious objectors, because doing so would not have promoted the
state’s desired end.175
Yet, such an analysis might have led to a different outcome in
Sherbert. The South Carolina Supreme Court had reasoned that the
purpose behind the unemployment statute was to provide compensation for those laid off at work176 and not those who “chose” not to work
for compelling reasons such as the need to be home at certain times to
care for children177 or to avoid working on the Sabbath.178 It was presumably reasonable for the state to refuse to award benefits to individuals choosing not to work, even if refusing for important reasons, in
light of the state’s goal of providing temporary compensation to those
laid off. Further, there was no claim that the state intended to punish
those of a particular religion or those who wished to be home with
children during certain hours of the day, which made the burden incidental and indirect rather than targeted.179 Indirect nature of the
burden notwithstanding, the Sherbert Court struck down the refusal
of unemployment compensation which had placed “the same kind of
burden upon the free exercise of religion as would a fine imposed
171. Id.
172. Id. at 382.
173. See id. (“[O]nce drafted, educational benefits may help make military service
more palatable to a draftee and thus reduce a draftee’s unwillingness to be a
soldier.”).
174. Id. at 382–83.
175. Cf. id. at 383 (“[T]he inclusion of one group promotes a legitimate governmental
purpose, and the addition of other groups would not . . . .”).
176. See Sherbert v. Verner, 125 S.E.2d 737, 740 (S.C. 1962) (citing Judson Mills v.
S.C. Unemployment Comp. Comm’n., 28 S.E.2d 535, 537 (S.C. 1944)), rev’d, 374
U.S. 398 (1963).
177. See id. at 742 (discussing Hartsville Cotton Mill v. S.C. Emp’t Sec. Comm’n, 79
S.E.2d 381, 382 (S.C. 1953)).
178. Id. (citing Kut v. Albers Super Mkts., 66 N.E.2d 643, 644 (Ohio 1946)).
179. Cf. Sherbert, 374 U.S. at 403 (recognizing that the burden on Sherbert was “only
an indirect result of welfare legislation within the State’s general competence to
enact”).
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against appellant for her Saturday worship.”180 South Carolina’s approach was doomed once it was likened to a system that taxed based
on religious belief.
In effect, Robison argued that his burden was analogous to being
taxed for his religious beliefs since Congress effectively “increase[ed]
the price he [the conscientious objector] must pay for adherence to his
religious beliefs.”181 However, rather than compare the price imposed
on Robison to the price imposed on Sherbert,182 the Court instead
noted that the statute at issue did “not require appellee and his class
to make any choice comparable to that required of the petitioners in
Gillette.”183 The Court’s point was accurate in that the price of following one’s conscience in Gillette was incarceration, whereas the price of
following one’s conscience in Robison was merely the opportunity cost
associated with not having the government pay for one’s education.
But the Court did more than merely note that the comparative burden
in Gillette was greater; in addition, the Robison Court implied that the
government’s interests at stake in Robison and Gillette were comparable—“the Government’s substantial interest in raising and supporting
armies, is of ‘a kind and weight’ clearly sufficient to sustain the challenged legislation . . . .”184
Yet, this was a surprising argument to make. In Gillette, the Court
implied that requiring exemptions for individuals with conscientious
objections about a particular war would put the fate of the whole draft
at risk.185 There was great importance in having “fair, evenhanded,
and uniform decisionmaking”186 with respect to who would be drafted
and “the interest in fairness would be jeopardized by expansion [of the
exemption] to include conscientious objection to a particular war.”187
The Gillette Court had taken seriously how expanding the exemption
to those whose consciences forbade participation in a particular conflict might seriously impair “the Government’s interest in procuring
the manpower necessary for military purposes.”188
Similar concerns were not implicated in Robison. Those whose educational benefits were at issue were already exempted from active
military duty, and the Court expressly rejected that the provision of
military benefits would affect the decisionmaking of those claiming a
180. Id. at 404.
181. Johnson v. Robison, 415 U.S. 361, 383 (1974).
182. See id. at 387 (Douglas, J., dissenting) (suggesting the Sherbert analysis was applicable in Robison).
183. Id. at 385.
184. Id. (citing U.S. CONST. art. I, § 8),
185. But see infra note 263 and accompanying text (offering a more critical view of this
claim).
186. Gillette v. United States, 401 U.S. 437, 455 (1971).
187. Id.
188. Id. at 462.
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conscientious objection.189 But that means that the state’s interest
was not in whether the draft could survive,190 but merely in whether
the United States would have to bear the additional costs implicated
in footing the educational costs of conscientious objectors. South Carolina’s desire to limit its unemployment compensation costs did not
prevent invalidation of its approach,191 and it is not at all clear that
protection of the federal fisc would have sufficed as a justification in
Robison. It is thus difficult to tell whether the Court implicitly
changed its analysis with respect to the kind of burden that will trigger free exercise guarantees192 or whether instead the Court somehow
thought the integrity of the (former) draft was predicated on conscientious objectors not receiving these education benefits.
E.
Back to Robust Protection?
In a subsequent case, Thomas v. Review Board of Indiana Employment Security Division,193 the Court made clear that the Sherbet analysis had continuing vitality. At issue was whether Eddie Thomas was
entitled to unemployment compensation benefits when he quit his job
rather than violate his conscience by working to produce weapons.194
Although a friend, also a Jehovah’s Witness, had told him that it was
not unscriptural to perform the job at issue,195 Thomas disagreed, believing that his friend’s interpretation of religious duty was too lax.196
Using language that might well have led to a different result in
Robison, the Thomas Court reasoned that “a burden upon religion exists”197 if “the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith”198 or if the state “denies such a
189. See supra text accompanying note 174.
190. By the time the Court issued this decision, the United States had shifted policy
and was using an all-volunteer army. See Christine Hunter Kellett, Draft Registration and the Conscientious Objector: A Proposal to Accommodate Constitutional Values, 15 COLUM. HUM. RTS. L. REV. 167, 168 n.9 (1984) (“The Congress
went to an all-volunteer army and ended the draft in 1973.”).
191. Cf. Sherbert v. Verner, 374 U.S. 398, 407 (1963) (discussing the “possibility that
the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might . . . dilute the unemployment compensation fund”).
192. Cf. Johnson v. Robison, 415 U.S. 361, 385 (1974) (questioning “if, indeed, any
burden exists at all”).
193. 450 U.S. 707 (1981).
194. Id. at 711 (“The hearing referee found that Thomas’ religious beliefs specifically
precluded him from producing or directly aiding in the manufacture of items used
in warfare. He also found that Thomas had terminated his employment because
of these religious convictions.”).
195. Id.
196. Id. (“Thomas was not able to ‘rest with’ this view, however. He concluded that his
friend’s view was based upon a less strict reading of Witnesses’ principles than
his own.”).
197. Id. at 718.
198. Id. at 717.
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benefit because of conduct mandated by religious belief.”199 The test
is not whether the individual changes his conduct or even whether he
is likely to do so; instead, the question is whether the state puts “substantial pressure on an adherent to modify his behavior and to violate
his beliefs.”200 But if denying unemployment compensation imposed
pressure on religious beliefs, then denying educational benefits might
also be thought to impose pressure on those asserting conscientious
objections.
That the state was imposing pressure on religious beliefs did not
establish that the state’s action was impermissible. The state can burden religious exercise if doing so “is the least restrictive means of
achieving some compelling state interest.”201 But such a test is quite
difficult to meet, and Indiana could not establish that its implicated
state interests justified denial of unemployment compensation in that
case.202
F.
Tepid Protection?
The very next year, the Court again seemed to modify its approach.
In United States v. Lee,203 the Court examined whether an individual
could be forced to participate in the social security system even if doing so violated his religious principles.204 Edwin Lee “employed several other Amish to work on his farm and in his carpentry shop.”205
However, he refused as a matter of religious conviction206 to pay the
employer’s share of social security and also refused to withhold from
his employees’ paychecks their share of social security.207
The Lee Court accepted that forcing Lee to participate in the social
security system imposed a burden on his free exercise. “Because the
payment of the taxes or receipt of benefits violates Amish religious
beliefs, compulsory participation in the social security system interferes with their free exercise rights.”208 The Court then articulated
the test to determine whether such interference could pass constitu199.
200.
201.
202.
203.
204.
205.
206.
207.
208.
Id. at 717–18.
Id. at 718.
Id.
Id. at 719 (“Neither of the interests advanced is sufficiently compelling to justify
the burden upon Thomas’ religious liberty.”).
455 U.S. 252 (1982).
Id. at 254 (“[Edwin Lee] failed to file the quarterly social security tax returns
required of employers, withhold social security tax from his employees, or pay the
employer’s share of social security taxes.”).
Id.
See id. at 255 (“[T]he Amish religion not only prohibits the acceptance of social
security benefits, but also bars all contributions by Amish to the social security
system.”).
Id. at 254.
Id. at 257.
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tional muster. “The state may justify a limitation on religious liberty
by showing that it is essential to accomplish an overriding governmental interest.”209
The state interest in maintaining the social security system is significant, because it “serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all
participants, with costs shared by employers and employees.”210 Further, “mandatory participation is indispensable to the fiscal vitality of
the social security system,”211 because “a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to
administer.”212 Thus, the Court explained why it would not be workable to adopt a voluntary social security system, although Lee had
merely suggested that he must be afforded an exemption as a matter
of free exercise.213
The Court was fearful that recognizing an exemption for Lee would
open up the floodgates—“[I]t would be difficult to accommodate the
comprehensive social security system with myriad exceptions flowing
from a wide variety of religious beliefs.”214 A ruling for Lee might not
only have had implications for the social security program but for the
tax system more generally. “There is no principled way . . . for purposes of this case to distinguish between general taxes and those imposed under the Social Security Act.”215 But if no principled
distinction could be made, then the Court feared that there might be a
whole host of challenges to tax laws. “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal
budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying
that percentage of the income tax.”216
That the Court was worrying about whether its decision would
open up the floodgates is not surprising.217 Nonetheless, the Court’s
analysis in Lee was rather surprising, given that an analogous argument might have required a very different result in both Sherbert and
209. Id. (citing Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981);
Wisconsin v. Yoder, 406 U.S. 205 (1972)).
210. Id. at 258.
211. Id.
212. Id.
213. Id. at 255 (discussing Lee’s “claim[ ] that imposition of the social security taxes
violated his First Amendment free exercise rights and those of his Amish
employees”).
214. Id. at 259–60.
215. Id. at 260.
216. Id.
217. Cf. Schriro v. Landrigan, 550 U.S. 465, 499 (2007) (Stevens, J., dissenting) (“[T]he
Court’s decision can only be explained by its increasingly familiar effort to guard
the floodgates of litigation.”).
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Thomas. Given the diversity of religious beliefs in this country,218 the
Court might have feared opening the floodgates to recognize a whole
host of required exemptions to the rule that individuals who voluntarily refused suitable employment could not receive unemployment
compensation.
The Lee Court supported its refusal to recognize an exception for
Amish employers by noting that Congress had exempted the self-employed from social security requirements.219 That was “a narrow category which was readily identifiable.”220 While the Court did not
explain why that group in particular had been singled out, one justification would be that where the individual is self-employed both the
employer and the employee would share the religious beliefs in question. No conflict would arise because, for example, religious convictions prevented the employer but not the employee from participating
in social security, and the provision mentioned by the Court expressly
requires that exempted employees waive their rights to benefits.221
Yet, if this is why Congress limited the exemption, then there
would seem to be good reason for the Court to say that the exemption
had to be expanded slightly to cover exactly the kind of case before the
Court in Lee, i.e., cases in which both the employer and all of the employees object to participation. The Court was confident that Congress was “sensitive to the needs flowing from the Free Exercise
Clause”222 and that its decision about where to draw the line must be
given deference,223 but no reasons were offered to justify deferring to
Congress but not to state legislatures who also sought to draw a sensible line with respect to which individuals should receive unemployment compensation.
In his concurrence in Lee, Justice Stevens noted that as “a matter
of administration, it would be a relatively simple matter to extend the
exemption to the taxes involved in this case.”224 He also noted that
218. Braunfeld v. Brown, 366 U.S. 599, 606 (1961) (“[W]e are a cosmopolitan nation
made up of people of almost every conceivable religious preference.”).
219. Lee, 455 U.S. at 260 (“Congress granted an exemption, on religious grounds, to
self-employed Amish and others.”).
220. Id. at 261.
221. See 26 U.S.C. § 1402(g)(1)(b) (2010) (“Such exemption may be granted only if the
application contains or is accompanied by . . . his waiver of all benefits and other
payments under titles II and XVIII of the Social Security Act on the basis of his
wages and self-employment income as well as all such benefits and other payments to him on the basis of the wages and self-employment income of any other
person[.]”).
222. Lee, 455 U.S. at 261.
223. Id. (“Congress drew a line in § 1402(g), exempting the self-employed Amish but
not all persons working for an Amish employer. The tax imposed on employers to
support the social security system must be uniformly applicable to all, except as
Congress provides explicitly otherwise.”).
224. Id. at 262 (Stevens, J., concurring in the judgment).
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doing so would likely confer a fiscal benefit rather than impose a fiscal
burden on the United States.225 Nonetheless, he feared that recognizing an exemption in this case would open the door to other individuals
claiming that they too should be exempted, and the difficulties in determining which other exemptions should be granted justified granting no exemption in this case.226
Tony & Susan Alamo Foundation v. Secretary of Labor227 also involved both the employer and employees challenging the failure to afford an exemption as a matter of free exercise.228 The Foundation had
been accused of violating the Fair Standards Labor Act.229 Those
working for the Foundation were not paid wages but were given food,
shelter, clothing, transportation, and medical care.230
The Court recognized that in this case those challenging the law
were those whom it was designed to protect, but suggested that affording an exemption where employees were willing to work without being
paid wages would give employers an unfair advantage. “If an exception to the Act were carved out for employees willing to testify that
they performed work ‘voluntarily,’ employers might be able to use superior bargaining power to coerce employees to make such assertions,
or to waive their protections under the Act.”231
Of course, the issue was not whether employees must be willing to
accept their wages as a general matter—here, the question was
whether “imposition of the minimum wage . . . requirements will violate the rights of the associates to freely exercise their religion.”232
The Court noted that “the Free Exercise Clause does not require an
exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant’s freedom to exercise religious rights.”233 Because wages need not be in the form of
225. Id. (“As a matter of fiscal policy, an enlarged exemption probably would benefit
the social security system because the nonpayment of these taxes by the Amish
would be more than offset by the elimination of their right to collect benefits.”).
226. Id. at 263 (“I agree with the Court’s conclusion that the difficulties associated
with processing other claims to tax exemption on religious grounds justify a rejection of this claim.”).
227. 471 U.S. 290 (1985).
228. Id. at 293 (“The associates who had testified at trial had vigorously protested the
payment of wages, asserting that they considered themselves volunteers who
were working only for religious and evangelical reasons.”). It was not clear, however, whether all 300 associates viewed themselves as volunteers. See id.
229. Id. (“[T]the Secretary of Labor filed an action against the Foundation, the
Alamos, and Larry La Roche, who was then the Foundation’s vice president, alleging violations of the minimum wage, overtime, and recordkeeping provisions of
the Fair Labor Standards Act.”).
230. See id.
231. Id. at 302 (citing Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728
(1981)).
232. Id. at 303.
233. Id.
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cash but could instead simply be in benefits,234 the Court could not
see how the requirement imposed a burden on free exercise since “the
associates [could] simply continue to be paid in the form of benefits.”235 Even “if the associates’ beliefs precluded them from accepting
the statutory amount, there is nothing in the Act to prevent the associates from returning the amounts to the Foundation, provided that
they do so voluntarily.”236 The Court “therefore fail[ed] to perceive
how application of the Act would interfere with the associates’ right to
freely exercise their religious beliefs.”237
While the Court’s point that associates could always voluntarily
donate to the Foundation was eminently reasonable, it was nonetheless surprising in a number of respects. The relevant question was not
whether the Court believed that application of the statute imposed a
burden on the employees’ religious beliefs, but whether the employees
believed that. The Thomas Court suggested that “religious beliefs
need not be acceptable, logical, consistent, or comprehensible to others
in order to merit First Amendment protection.”238 Not only was it important to focus on the claimants’ rather than the Justices’ beliefs, but
it might also have been important to focus on the contents of the particular beliefs at issue. Thus, if part of the belief was that the individuals should not receive “excess” wages rather than merely that they
should not keep excess wages, then one would have expected the Court
to discuss why the state had a compelling interest at stake and why
allowing an exemption would have severely undermined that
interest.239
The Court seemed to second-guess religious beliefs in Bowen v.
Roy240 as well. At issue was whether the provision of welfare benefits
could be conditioned on acceptance of a Social Security number when
use of that number would impose a burden on free exercise.241 “Roy
234. Id. at 303–04 (“The Act, however, does not require the payment of cash wages.
Section 203(m) defines ‘wage’ to include ‘the reasonable cost . . . of furnishing [an]
employee with board, lodging, or other facilities.’ ” (quoting 29 U.S.C. § 203(m)
(1977))).
235. Id. at 304.
236. Id.
237. Id. at 304–05.
238. Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981).
239. Cf. Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (“The governmental interest at stake here is compelling. . . . That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’
exercise of their religious beliefs . . . [and] no ‘less restrictive means,’ are available to achieve the governmental interest.” (citing Thomas, 450 U.S. at 718)).
240. 476 U.S. 693 (1986).
241. Id. at 695 (“The question presented is whether the Free Exercise Clause of the
First Amendment compels the Government to accommodate a religiously based
objection to the statutory requirements that a Social Security number be provided by an applicant seeking to receive certain welfare benefits . . . .”).
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objects to the statutory requirement that state agencies ‘shall utilize’
Social Security numbers not because it places any restriction on what
he may believe or what he may do, but because he believes the use of
the number may harm his daughter’s spirit.”242 The Court was utterly unsympathetic to Roy’s claim, noting that the Court had never
“interpreted the First Amendment to require the Government itself to
behave in ways that the individual believes will further his or her
spiritual development or that of his or her family.”243 Yet, more had
to be said to distinguish this case from the other free exercise precedent, since those cases were often about what the government can or
cannot do. The Roy Court further explained: “The Free Exercise
Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious
beliefs of particular citizens.”244 Thus, the Government may be
barred from forcing individuals to perform particular actions in light
of their religious beliefs, but individuals’ religious beliefs cannot dictate the Government’s particular “internal procedures.”245
What then of the requirement that individuals provide social security numbers to the government in order to receive Aid to Families
with Dependent Children (AFDC) benefits? The Court noted that
“[t]he statutory requirement that applicants provide a Social Security
number is wholly neutral in religious terms and uniformly applicable.”246 Thus, there was no suggestion that the statute involved an
“attempt by Congress to discriminate invidiously”247 or an attempt to
engage in the “covert suppression of particular religious beliefs.”248
That said, the requirement “may indeed confront some applicants for
benefits with choices, but in no sense does it affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated
conduct or to engage in conduct that they find objectionable for religious reasons.”249 But this was an unusual interpretation of what was
being asserted, because Roy argued that his conduct (provision of his
daughter’s social security number) would rob her of her spirit, which
was something that he of course had religious compunctions about
doing.
The Court understood that Roy was being asked to do something to
which he had religious objections. However, it was not as if Roy was
simply minding his own business when the Government spontaneously imposed this new requirement on him. Rather “it is appellees
242.
243.
244.
245.
246.
247.
248.
249.
Id. at 699.
Id.
Id.
Id. at 700.
Id. at 703.
Id.
Id.
Id.
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who seek benefits from the Government and who assert that, because
of certain religious beliefs, they should be excused from compliance
with a condition that is binding on all other persons who seek the
same benefits from the Government.”250
The Court seemed to make two related points. The government’s
imposition of a burden was only in response to Roy having sought
something, and the burden itself was the denial of a benefit rather
than, for example, the imposition of a criminal penalty. While benefits are important, the kind of burden imposed here was qualitatively
different from the kind of burden imposed where the government
criminalizes religious practice. “[W]e cannot ignore the reality that
denial of such benefits by a uniformly applicable statute neutral on its
face is of a wholly different, less intrusive nature than affirmative
compulsion or prohibition, by threat of penal sanctions, for conduct
that has religious implications.”251 That did not make the burden imposed in this kind of case immunized from review. “A governmental
burden on religious liberty is not insulated from review simply because it is indirect.”252 Although “the nature of the burden is relevant
to the standard the government must meet to justify the burden.”253
Where the burden is indirect and there is no evidence of any intent
to discriminate, neutral and generally applicable laws will be upheld
as long as they are reasonably related to the promotion of legitimate
government interests.254 What about Thomas and Sherbert, which
also involved individuals seeking benefits from the government?255 In
those cases, the state had “created a mechanism for individualized exemptions [and] [i]f a state creates such a mechanism, its refusal to
extend an exemption to an instance of religious hardship suggests a
discriminatory intent.”256 Because the state was already willing to
make judgements on a case-by-case basis, “it was appropriate to require the State to demonstrate a compelling reason for denying the
requested exemption.”257 What about the state’s decision with respect
to whether it would create a process for case-by-case decision-making?
250. Id.
251. Id. at 704.
252. Id. at 706 (citing Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707,
717–18 (1981)).
253. Id. at 707.
254. Id. at 707–08 (“Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden when
it demonstrates that a challenged requirement for governmental benefits, neutral
and uniform in its application, is a reasonable means of promoting a legitimate
public interest.”).
255. Cf. id. at 733 (White, J., dissenting) (“Being of the view that Thomas v. Review
Bd. of Indiana Employment Security Div. and Sherbert v. Verner control this case,
I cannot join the Court’s opinion and judgment.” (citations omitted)).
256. Id. at 708 (majority opinion).
257. Id.
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The Court explained that “a policy decision by a government that it
wishes to treat all applicants alike and that it does not wish to become
involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference.”258 The Court concluded that the “Appellees may not
use the Free Exercise Clause to demand Government benefits, but
only on their own terms, particularly where that insistence works a
demonstrable disadvantage to the Government in the administration
of the programs.”259 Yet, the unemployment compensation cases essentially required the government to afford compensation on the appellants’ “own terms,”260 and one reason that the states might not
have wanted to afford such benefits to those refusing to work for religious reasons could have been reluctance to inquire “into the genuineness of each religious objection to such condition or restrictions.”261
There was yet another respect in which the Roy analysis did not
seem to account for prior jurisprudence. Consider Gillette, where the
government was already doing a case-by-case analysis so that individuals with conscientious objections to all wars could escape active service. The Court suggested that the federal government had a
compelling interest in not also affording an exemption to individuals
with conscientious objections to a particular war, citing both fairness
and manpower concerns. Yet, it may well be that the Court was too
willing to accept the Government’s asserted justifications without subjecting them to close examination. Many individuals would not have
been able to establish their sincere religious objections to participating
in that war in particular when the individualized review was performed, which would mean that many would not qualify for the exemption in any event. Further, servicemembers may well not have
thought it any more unfair to exempt those with sincere conscientious
objections to a particular war than to exempt those with sincere conscientious objections to all wars.262 Prior case law did not privilege
the case-by-case analysis offered by the Roy Court both in that neutral
and general laws were not always given deference (as Yoder illustrates),263 and in that laws with such exceptions did not employ the
258.
259.
260.
261.
262.
Id. at 707.
Id. at 711–12.
Id. at 712.
Id. at 707.
See Michael J. Davidson, War and the Doubtful Soldier, 19 NOTRE DAME J.L. ETHICS & PUB. POL’Y 91, 139 (2005) (“An expansion of the conscientious objector exemption would comport with our deep-rooted tradition of accommodating those
members of our citizenry with sincere moral or religious objections to participating in a war.”).
263. See supra text accompanying notes 134–63 (discussing Yoder).
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demanding scrutiny that the Court implied would be thereby triggered (as Seeger illustrates).264
The validity of the Roy analysis was questioned the very next year
in Hobbie v. Unemployment Appeals Commission of Florida.265 At issue was whether an individual who converted to the Seventh-day Adventist faith could be denied unemployment compensation when she
refused to work on Saturdays.266 The Court noted, “Under our precedents, the Appeals Commission’s disqualification of appellant from receipt of benefits violates the Free Exercise Clause of the First
Amendment, applicable to the States through the Fourteenth Amendment.”267 The Florida Appeals commission argued that “its justification should be determined under the less rigorous standard
articulated in Chief Justice Burger’s opinion in Bowen v. Roy.268
Rather than explain why this case fell within the exception recognized
under Roy,269 the Court simply rejected the Roy analysis.270
Yet, the following year the Court decided Lyng v. Northwest Indian
Cemetery Protective Ass’n,271 offering an analysis that was reminiscent of the analysis in Roy. At issue was whether the Forest Service
could build a road through federal lands,272 which would have resulted in great harm to lands held sacred by certain Native American
tribes.273 The tribes argued “the burden on their religious practices is
heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G–O road or
to engage in timber harvesting in the Chimney Rock area.”274
When analyzing the challenge, the Court noted that “[t]he building
of a road or the harvesting of timber on publicly owned land cannot
meaningfully be distinguished from the use of a Social Security number in Roy.”275 While “the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual
264. See supra text accompanying notes 100–18 (discussing Seeger).
265. 480 U.S. 136 (1987).
266. Id. at 138 (“[A]fter a meeting with Hobbie and her minister, the general manager
informed appellant that she could either work her scheduled shifts or submit her
resignation to the company. When Hobbie refused to do either, Lawton discharged her.”).
267. Id. at 139–40 (citing Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review
Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)).
268. Id. at 141 (citing Bowen v. Roy, 476 U.S. 693, 707–08 (1986)).
269. See id. at 147 (Powell, J., concurring in the judgment) (“The Court recognizes in a
footnote that the reasoning of Roy does not apply to this case.”).
270. See id. at 141–42 (majority opinion); see also id. at 147 (Powell, J., concurring in
the judgment) (“[T]he Court reaches out to reject the reasoning of Roy in toto.”).
271. 485 U.S. 439 (1988).
272. See id. at 442.
273. See id.
274. Id. at 447.
275. Id. at 449.
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fulfillment according to their own religious beliefs,”276 the Court reasoned that it could not be said that “the affected individuals [would] be
coerced by the Government’s action into violating their religious beliefs.”277 Further, it also could not be maintained that the “governmental action penalize[s] religious activity by denying any person an
equal share of the rights, benefits, and privileges enjoyed by other
citizens.”278
While acknowledging “that the logging and road-building projects
at issue in this case could have devastating effects on traditional Indian religious practices,”279 the Court explained that “the Constitution simply does not provide a principle that could justify upholding
respondents’ legal claims.”280 The difficulty was that the “government
simply could not operate if it were required to satisfy every citizen’s
religious needs and desires.”281 Indeed, the same government activities might promote the spiritual requirements of some groups while
undermining the spiritual requirements of others.282 The Court concluded, “Whatever rights the Indians may have to the use of the area,
however, those rights do not divest the Government of its right to use
what is, after all, its land.”283
Yet, much of the Court’s analysis was at best unpersuasive. For
example, the Court’s point that particular government policies might
promote the spiritual interests of some and undermine the spiritual
interests of others might be important were the question at hand
which exceptionless policy should be adopted—there the government
could not help but offend someone’s religious beliefs. But individuals
who request a free exercise exemption are not seeking implementation
of an exceptionless policy; instead, they are seeking not to have a policy applied to them in particular because of their religious beliefs.
Thus, the response to the point that a particular government policy
might be compatible with the religious beliefs of some but incompatible with the religious beliefs of others is that the latter group might be
exempted from the policy (unless doing so would itself be too costly).
In Lyng, respecting the religious wishes of the tribes would have
meant stopping the logging and road-building altogether. If re276.
277.
278.
279.
280.
281.
282.
Id.
Id.
Id.
Id. at 451.
Id. at 452.
Id.
Id. (“A broad range of government activities . . . will always be considered essential to the spiritual well-being of some citizens . . . . Others will find the very same
activities deeply offensive, and perhaps incompatible with . . . the tenets of their
religion.”).
283. Id. at 453 (citing Bowen v. Roy, 476 U.S. 693, 724–27 (1986) (O’Connor, J., concurring in part and dissenting in part)).
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fraining from engaging in those activities would have undermined a
compelling state interest284 then the Forest Service could have proceeded with its plans in any event. The Court seemed reluctant, however, to apply the compelling interest test when the Government’s use
of its own property was at issue.285 Yet the unemployment compensation cases involved the Government’s use of its own resources, although the resources in those cases did not involve land.
The Lyng analysis raised another concern. When religious practices are substantially burdened, the Court will sometimes judge the
constitutionality of the challenged action in light of the compelling interest test and at other times will not. But without some principle to
determine when the state must meet that standard, there is a great
danger that the Court would appear to respect the free exercise rights
of some groups but not of others.286
Texas Monthly, Inc. v. Bullock287 provided further clarification of
the Court’s understanding of free exercise guarantees. Texas had “exempt[ed] from its sales tax ‘[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings
promulgating the teaching of the faith and books that consist wholly of
writings sacred to a religious faith.’ ”288 The state justified its exemption by stating that it had a compelling interest in respecting free exercise guarantees.289 However, the plurality noted that the Free
Exercise Clause does not “prevent[ ] the State from eliminating altogether its exemption for religious publications,”290 especially when
there had been “no evidence that the payment of a sales tax by subscribers to religious periodicals or purchasers of religious books would
offend their religious beliefs or inhibit religious activity.”291 Even
were such a claim made, the plurality noted that “a State’s interest in
the uniform collection of a sales tax appears comparable to the Federal
Government’s interest in the uniform collection of Social Security
taxes.”292 By the same token, the Court in Jimmy Swaggart Minis284. But see id. at 465 (Brennan, J., dissenting) (“The Court does not for a moment
suggest that the interests served by the G–O road are in any way
compelling . . . .”).
285. See id. at 453 (majority opinion).
286. See Rebekah J. French, Free Exercise of Religion on the Public Lands, 11 PUB.
LAND L. REV. 197, 209 (1990) (“The Supreme Court’s refusal to apply the traditional balancing test to free exercise claims brought by Native Americans demonstrates the extent of their hostility to the religious beliefs of that minority.”).
287. 489 U.S. 1 (1989).
288. Id. at 5 (quoting TEX. TAX CODE ANN. § 151.312 (West 1982)).
289. Id. at 17 (“Texas claims that it has a compelling interest in avoiding violations of
the Free Exercise and Establishment Clauses . . . .”).
290. Id. at 18.
291. Id.
292. Id. at 19–20.
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tries v. Board of Equalization of California293 upheld California’s “imposition of sales and use tax liability on [a religious organization’s]
sale of religious materials.”294 Here, too, the Court noted that there
was “no evidence . . . that collection and payment of the tax violates
appellant’s sincere religious beliefs.”295
The Court issued Employment Division, Department of Human Resources of Oregon v. Smith296 the same year that it issued Jimmy
Swaggart Ministries.297 At issue was a claim for unemployment compensation by two drug counselors who had been fired from their jobs
for using peyote sacramentally in accordance with their religious tradition.298 The respondents argued “their religious motivation for using peyote places them beyond the reach of a criminal law that is not
specifically directed at their religious practice, and that is concededly
constitutional as applied to those who use the drug for other reasons.”299 Basically, they suggested that the Sherbert balancing test
should be used,300 i.e., that “governmental actions that substantially
burden a religious practice must be justified by a compelling governmental interest.”301 The Court rejected this suggestion,302 concluding, “Because respondents’ ingestion of peyote was prohibited under
Oregon law, and because that prohibition is constitutional, Oregon
may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of
the drug.”303
Ironically, the Smith II Court noted that “[t]he Sherbert
test . . . was developed in a context that lent itself to individualized
governmental assessment of the reasons for the relevant conduct.”304
In the case before the Court, however, the individualized assessment
rule was allegedly inapplicable because the criminal law did not con293.
294.
295.
296.
297.
298.
299.
300.
301.
302.
303.
304.
493 U.S. 378 (1990).
Id. at 384.
Id. at 391.
Emp’t Div., Dep’t of Human Res. of Or. v. Smith (Smith II), 494 U.S. 872 (1990).
Both were issued in 1990. See supra notes 293 & 296.
Smith II, 494 U.S. at 874 (“Respondents Alfred Smith and Galen Black (hereinafter respondents) were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony
of the Native American Church, of which both are members.”).
Id. at 878.
Id. at 882–83 (“Respondents argue that even though exemption from generally
applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under
the balancing test set forth in Sherbert v. Verner.” (citation omitted)).
Id. at 883 (citing Sherbert v. Verner, 374 U.S. 398, 402–03 (1963)).
Id. at 884 (“Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require exemptions
from a generally applicable criminal law.”).
Id. at 890.
Id. at 884.
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tain an exemption for religious use of peyote.305 This was misleading
in at least two respects. First, there was an exception under Oregon
law if the substance was prescribed.306 Second, the Oregon criminal
law was not at issue before the Court because the respondents had
never even been prosecuted.307 What was at issue was the denial of
employment benefits.308 But the denial of unemployment benefits required individualized assessment, which would seem to implicate
Sherbert’s individualized assessment rule.309
The Court denied that the individualized assessment rule was implicated. “[I]f a State has prohibited through its criminal laws certain
kinds of religiously motivated conduct without violating the First
Amendment, it certainly follows that it may impose the lesser burden
of denying unemployment compensation benefits to persons who engage in that conduct.”310 To support that claim, the Court cited its
previous decision (Smith I) involving Smith and Black.311
In Smith I, the United States Supreme Court addressed the Oregon Supreme Court’s holding that Smith and Black could not be denied unemployment benefits for the sacramental use of peyote,
notwithstanding that individuals convicted of peyote possession could
receive up to ten years in prison for that offense.312 The Smith I
Court rejected that “the illegality of an employee’s misconduct is irrelevant to the analysis of the federal constitutional [free exercise]
claim.”313 In a kind of “greater-includes-the-lesser approach,”314 the
Smith I Court reasoned that “if a State has prohibited through its
criminal laws certain kinds of religiously motivated conduct without
305. See id. at 874 (“Oregon law prohibits the knowing or intentional possession of a
‘controlled substance’ unless the substance has been prescribed by a medical
practitioner.” (citing ORE. REV. STAT. § 475.992(4) (1987))).
306. See id.
307. Id. at 911 (Blackmun, J., dissenting) (“In this case, the State actually has not
evinced any concrete interest in enforcing its drug laws against religious users of
peyote. Oregon has never sought to prosecute respondents . . . .”).
308. See id. at 874–75 (majority opinion).
309. See supra note 300 and accompanying text.
310. Smith II, 494 U.S. at 875 (quoting Emp’t Div., Dep’t of Human Res. of Or. v.
Smith (Smith I), 485 U.S. 660, 670 (1988)).
311. Id. (citing Smith I, 485 U.S. at 670).
312. Smith I, 485 U.S. at 661–62 (“The Oregon Supreme Court held that this denial . . . violated the Free Exercise Clause of the First Amendment to the Federal
Constitution. In reaching that conclusion the state court attached no significance
to the fact that the possession of peyote is a felony under Oregon law punishable
by imprisonment for up to 10 years.”).
313. Id. at 670.
314. Cf. Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 345–46 (1986)
(“[T]he greater power to completely ban casino gambling necessarily includes the
lesser power to ban advertising of casino gambling . . . .”). But see 44 Liquormart,
Inc. v. Rhode Island, 517 U.S. 484, 511 (1996) (“[T]he ‘greater-includes-the-lesser’
argument should be rejected for the additional and more important reason that it
is inconsistent with both logic and well-settled doctrine.”).
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violating the First Amendment, it certainly follows that it may impose
the lesser burden of denying unemployment compensation benefits to
persons who engage in that conduct.”315 Indeed, the Court’s holdings
“in Sherbert, Thomas, and Hobbie might well have been different if
the employees had been discharged for engaging in criminal conduct.”316 Bigamy, for example, “may be forbidden, even when the
practice is dictated by sincere religious convictions.”317 But “[i]f a bigamist may be sent to jail despite the religious motivation for his misconduct, surely a State may refuse to pay unemployment
compensation to a marriage counselor who was discharged because he
or she entered into a bigamous relationship.”318
Applying its reasoning to the issue before it, the Smith I Court explained that “if Oregon does prohibit the religious use of peyote, and if
that prohibition is consistent with the Federal Constitution, there is
no federal right to engage in that conduct in Oregon.”319 But that
would mean that if there was no exception for the sacramental use of
peyote in Oregon, then “the State [would be] free to withhold unemployment compensation from respondents for engaging in work-related misconduct, despite its religious motivation.”320
A few points might be made about the Smith I Court’s reasoning.
Basically the Court said the following: Suppose that Statute 1
criminalizes certain religious behavior. Suppose further that Statute
2 imposes a civil burden, e.g., the denial of benefits, on individuals
engaging in that religious behavior. One would expect that if Statute
1 is constitutional because narrowly tailored to promote certain compelling interests, then Statute 2 would also be constitutional as long
as it was also narrowly tailored to promote certain compelling
interests.
Free exercise jurisprudence has long distinguished between direct
burdens such as criminal sanctions and indirect burdens such as the
denial of benefits. The latter is viewed as less onerous, so it is unsurprising for the Court to suggest that all else equal a less onerous penalty will not offend constitutional guarantees if indeed a greater
penalty would not have violated those guarantees. The Smith I Court
thus suggested that if refusing to afford an exemption for the sacramental use of peyote did not violate constitutional guarantees because
narrowly tailored to promote compelling state interests, then a denial
of unemployment compensation would also pass muster if narrowly
tailored to promote compelling state interests.
315.
316.
317.
318.
319.
320.
Smith I, 485 U.S. at 670.
Id. at 671.
Id. (citing Reynolds v. United States, 98 U.S. 145 (1879)).
Id.
Id. at 672.
Id.
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The Smith II Court modified the prevailing jurisprudence in two
ways: First, the Court announced that the “narrowly tailored to promote compelling interests” test was not triggered when neutral and
generally applicable laws burdening free exercise were at issue.321
The Court thereby weakened free exercise protections.322
Second, the Court may even have weakened the very test that it
announced, because the challenge in Smith II was to the refusal to use
the narrowly tailored to promote compelling state interests test in a
context (unemployment compensation benefits denial) in which a caseby-case approach was utilized.323 The Smith II Court cited to the
Smith I Court’s approach, which basically said that if a greater free
exercise burden is constitutional then a lesser burden is constitutional, too.324 But that makes sense only when all else is equal. All
else is not equal if the test for the case-by-case analysis differs from
the test for neutral and generally applicable laws. Thus, if neutral
and general (i.e., exceptionless) laws burdening free exercise do not
trigger strict scrutiny but laws (containing exceptions) that substantially burden free exercise do trigger strict scrutiny, the fact that the
former passes muster would not establish or even suggest that the
latter should also pass muster.
Smith II has the potential to change the jurisprudence even more
than is commonly appreciated. Suppose, for example, that a statute
criminalizing particular activity would be rationally related to the
promotion of legitimate goals and, further, that it would be rationally
related to legitimate goals not to make an exception for religious practices. A state might choose not to criminalize that activity even
though doing so would be constitutional. Arguably, the better greaterincludes-the-lesser test is not whether the state in fact criminalizes
particular conduct but whether it could do so without violating constitutional guarantees. Using that test, the state would be permitted to
deny benefits (a lesser penalty) in cases in which an individual engaged in the activity at issue for religious reasons, even if in fact the
state had not criminalized that activity.
Justice Scalia took something akin to this approach in his dissent
in Romer v. Evans,325 which involved a referendum that precluded the
321. John D. Inazu, More Is More: Strengthening Free Exercise, Speech, and Association, 99 MINN. L. REV. 485, 498–99 (2014) (“Smith also introduced another significant doctrinal change in free exercise law: the move from strict scrutiny to
rational basis scrutiny for claims challenging generally applicable laws.”).
322. See Conor B. Dugan, Note, Religious Liberty in Spain and the United States: A
Comparative Study, 78 NOTRE DAME L. REV. 1675, 1718 (2003) (“[T]he Smith decision . . . weakened free exercise protections.”).
323. See OR. REV. STAT. § 657.176(2) (2015) (specifying the conditions under which an
individual would not be eligible to receive benefits).
324. See supra text accompanying note 314.
325. 517 U.S. 620, 636 (1996) (Scalia, J., dissenting).
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state of Colorado and its localities from affording anti-discrimination
protection on the basis of sexual orientation.326 At the time, the Court
had not yet held that adult consensual relations are constitutionally
protected.327 Although Colorado had been one of the first states to
repeal its sodomy law,328 Justice Scalia nonetheless suggested that
because the state could have passed such a law, the state was constitutionally permitted to pick out a group who would or might engage in
sodomitical relations and preclude that group from receiving anti-discrimination protections.329
Suppose that Colorado had a law prohibiting sodomy at the time.
Even so, it could not have punished individuals without proof of their
having violated the law, i.e., those individuals could not have been
criminally punished for their sodomitical “tendencies.”330 However,
Justice Scalia suggested that individuals with such tendencies could
have civil penalties imposed upon them without violating constitutional guarantees.331
Justice Scalia did not mention some of the implications of his position. At the time Romer was decided fornication could still be
criminalized,332 which would presumably mean that unmarried individuals who had a tendency or desire to have sexual relations with
someone else who was unmarried could have civil penalties imposed
upon them without constitutional guarantees thereby being violated.333 Merely because a state had not chosen to impose criminal
sanctions against fornicators would not preclude it from imposing civil
disabilities on individuals with such tendencies. Of course, Justice
Scalia’s view has other implications, too. At the time, adultery could
326. See id. at 624 (majority opinion) (reproducing the language of the referendum
entitled “No Protected Status Based on Homosexual, Lesbian or Bisexual
Orientation”).
327. See Lawrence v. Texas, 539 U.S. 558 (2003).
328. See Romer, 517 U.S. at 645 (Scalia, J., dissenting) (“Colorado not only is one of
the 25 States that have repealed their antisodomy laws, but was among the first
to do so.” (citing 1971 Colo. Sess. Laws 388)).
329. Id. at 642 (“If it is rational to criminalize the conduct, surely it is rational to deny
special favor and protection to those with a self-avowed tendency or desire to
engage in the conduct.”).
330. See id. (“[A] person of homosexual ‘orientation’ is someone who [may] not engage
in homosexual conduct but merely has a tendency or desire to do so . . . .”).
331. Id. (“[W]here criminal sanctions are not involved, homosexual ‘orientation’ is an
acceptable stand-in for homosexual conduct.”).
332. See VA. CODE ANN. § 18.2-344 (West 2015) (“Any person, not being married, who
voluntarily shall have sexual intercourse with any other person, shall be guilty of
fornication, punishable as a Class 4 misdemeanor.”), declared unconstitutional by
Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005).
333. See Mark Strasser, Lawrence and Same-Sex Marriage Bans: On Constitutional
Interpretation and Sophistical Rhetoric, 69 BROOK. L. REV. 1003, 1032 (2004) (applying “Justice Scalia’s approach to the class of fornicators and those who have an
‘orientation’ to fornicate”).
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be punished criminally and likely still can be, even post-Lawrence.334
This would presumably mean that a state would not be violating constitutional guarantees if it imposed civil penalties on anyone who had
a desire or tendency to commit adultery. But if individuals might be
viewed as having a desire to commit adultery even when not doing
so,335 then a whole host of individuals—both married and unmarried—might be subject to civil penalties without constitutional guarantees thereby being violated.
Justice Scalia’s view did not win the day in Romer.336 Nonetheless, his approach could be imported into the free exercise context.
The constitutionality of criminalizing particular conduct (even if the
state had not in fact criminalized it) would entail that the state did not
violate constitutional guarantees by imposing civil burdens on individuals performing that conduct, even if they were doing so for religious
reasons. Such a view would make free exercise protections even
weaker than they already are.
III. THE CONGRESSIONAL RESPONSE TO THE COURT’S
FREE EXERCISE JURISPRUDENCE
Congress reacted to Smith by passing two statutes, the Religious
Freedom Restoration Act (RFRA)337 and the Religious Land Use and
Institutionalized Persons Act (RLUIPA).338 Both statutes were designed to protect free exercise under certain conditions. RLUIPA applies to both state and federal governments, although only with
respect to certain issues,339 whereas RFRA applies only to federal
law.340
334. Peter Nicolas, The Lavender Letter: Applying the Law of Adultery to Same-Sex
Couples and Same-Sex Conduct, 63 FLA. L. REV. 97, 101 (2011) (“[T]he Lawrence
majority’s statement that, as a general rule, states cannot regulate private sexual
behavior ‘absent injury to a person or abuse of an institution the law protects’
leaves ample room for states to criminalize adultery[.]” (citing Lawrence v. Texas,
539 U.S. 558, 567 (2003))).
335. Cf. Elizabeth F. Emens, Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & SOC. CHANGE 277, 299 (2004) (“President
Jimmy Carter, who managed to avoid the notorious adultery recently associated
with President Bill Clinton, famously admitted to lusting ‘in his heart.’ ”).
336. See Romer, 517 U.S. at 635 (“Amendment 2 violates the Equal Protection
Clause.”).
337. 42 U.S.C. §§ 2000bb–2000bb-4 (1993).
338. 42 U.S.C. §§ 2000cc–2000cc-5 (2000).
339. See infra text accompanying notes 342–43.
340. See infra text accompanying notes 355–63 (discussing how the United States Supreme Court limited RFRA’s application to only federal law).
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RLUIPA
The Court explained in Cutter v. Wilkinson341 that Congress
passed the Religious Land Use and Institutionalized Persons Act to
target religious exercise in two distinct areas: Section 2 of the Act concerns “land-use regulation,”342 and Section 3 targets “religious exercise by institutionalized persons.”343 The latter section was at issue in
Cutter, which involved a challenge under RLUIPA to the alleged refusal of Ohio prison officials to accommodate the religious exercise of
certain adherents of nonmainstream religions.344
The provision regarding the religious exercise of institutionalized
persons provided that “ ‘[n]o . . . government shall impose a substantial
burden on the religious exercise of a person residing in or confined to
an institution,’ unless the government shows that the burden furthers
‘a compelling governmental interest’ and does so by ‘the least restrictive means.’ ”345 Religious exercise includes “any exercise of religion,
whether or not compelled by, or central to, a system of religious
belief.”346
The Court explained that RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are
therefore dependent on the government’s permission and accommodation for exercise of their religion.”347 Rejecting that RLUIPA would
“elevate accommodation of religious observances over an institution’s
need to maintain order and safety,”348 the Court was confident that
“RLUIPA would . . . be applied in an appropriately balanced way, with
particular sensitivity to security concerns.”349 The Court rejected a
challenge to RLUIPA’s constitutionality under the Establishment
Clause, and remanded the case for further proceedings.350
RLUIPA and RFRA share certain features, for example, the definition of the exercise of religion.351 That definition “include[s] ‘any exercise of religion, whether or not compelled by, or central to, a system of
religious belief.’ ”352 Both statutes preclude the federal government
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.
351.
544 U.S. 709 (2005).
Id. at 715 (citing 42 U.S.C. § 2000cc).
Id. (citing 42 U.S.C. § 2000cc-1).
Id. at 712.
Id. at 715 (quoting 42 U.S.C. § 2000cc-1(a)(1)–(2)).
Id. (quoting 42 U.S.C. § 2000cc-5(7)(A)).
Id. at 721.
Id. at 722.
Id.
Id. at 726.
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 (2014) (“RLUIPA
amended RFRA’s definition of the ‘exercise of religion.’ ” (citing 42 U.S.C.
§ 2000bb-2(4) (1993))).
352. Id. at 2762 (quoting 42 U.S.C. § 2000cc-5(7)(A) (2000)).
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from substantially burdening free exercise without adequate
justification.353
B.
RFRA
In City of Boerne v. Flores,354 the Court noted the legislative intent
behind RFRA: “Congress enacted RFRA in direct response to the
Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith.”355
[RFRA] prohibits “[g]overnment” from “substantially burden[ing]” a person’s
exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden “(1) is in furtherance
of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.”356
The Boerne Court discussed RFRA’s wide reach: “RFRA applies to
all federal and state law, statutory or otherwise, whether adopted
before or after its enactment.”357 The Court explained that this
means “[a]ny law is subject to challenge at any time by any individual
who alleges a substantial burden on his or her free exercise of
religion.”358
There were at least two difficulties posed by the law. First, “If an
objector can show a substantial burden on his free exercise, the State
must demonstrate a compelling governmental interest and show that
the law is the least restrictive means of furthering its interest.”359
Thus, the state faces a daunting test in those instances in which a
substantial burden has been imposed.
If it were difficult for an individual to establish that his or her free
exercise had been substantially burdened, then RFRA’s protections
would not often be triggered. But that suggests the second difficulty.
“Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest.”360 The Court believed that “[i]t is
a reality of the modern regulatory state that numerous state
353. See id. at 2761 (“RFRA provides that ‘Government shall not substantially burden
a person’s exercise of religion even if the burden results from a rule of general
applicability.’” (quoting 42 U.S.C. § 2000bb–1(a))); see also Holt v. Hobbs, 135 S.
Ct. 853, 860 (2015) (“Section 3 [of RLUIPA] mirrors RFRA and provides that ‘[n]o
government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a
rule of general applicability . . . .’ ” (quoting 42 U.S.C. § 2000cc-1(a))).
354. 521 U.S. 507 (1997).
355. Id. at 512 (“Congress enacted RFRA in direct response to the Court’s decision in
Employment Div., Dep’t. of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990).”).
356. Id. at 515–16 (quoting 42 U.S.C. § 2000bb-1).
357. Id. at 532 (citing 42 U.S.C. § 2000bb-3(a)).
358. Id.
359. Id. at 533–34.
360. Id. at 534.
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laws . . . impose a substantial burden on a large class of
individuals.”361
The Court struck down RFRA as applied to the states as a violation
of federalism guarantees.362 A separate issue was the degree to which
RFRA applied to the actions of the federal government.
In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,363
the Court explained that “the Religious Freedom Restoration Act of
1993 . . . prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government ‘demonstrates that application of the burden to the person’ represents the
least restrictive means of advancing a compelling interest.”364 At issue was whether the Federal Government could prevent a spiritist
sect, the O Centro Espı́rita Beneficente Uniã do Vegetal (UDV), from
importing hoasca.365 Hoasca is a “sacramental tea made from two
plants unique to the Amazon region. One of the plants, psychotria
viridis, contains dimethyltryptamine (DMT), a hallucinogen whose effects are enhanced by alkaloids from the other plant, banisteriopsis
caapi.”366
Admitting that its act substantially burdened the free exercise interests of the UDV,367 the Government nonetheless contended that
“applying the Controlled Substances Act in this case was the least restrictive means of advancing . . . compelling governmental interests.”368 The Court reasoned that “RFRA requires the Government to
demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially burdened.”369
To support that analysis, the Court noted that “RFRA expressly
adopted the compelling interest test ‘as set forth in Sher361. Id. at 535.
362. See id. at 536 (“Broad as the power of Congress is under the Enforcement Clause
of the Fourteenth Amendment, RFRA contradicts vital principles necessary to
maintain separation of powers and the federal balance.”); see also Cutter v. Wilkinson, 544 U.S. 709, 715 (2005) (“In City of Boerne, this Court invalidated RFRA
as applied to States and their subdivisions, holding that the Act exceeded Congress’ remedial powers under the Fourteenth Amendment.” (citing Boerne, 521
U.S. at 532–36)).
363. 546 U.S. 418 (2006).
364. Id. at 423 (quoting 42 U.S.C. § 2000bb-1(b) (1993)).
365. Id. at 425 (“In 1999, United States Customs inspectors intercepted a shipment to
the American UDV containing three drums of hoasca. . . . The inspectors seized
the intercepted shipment and threatened the UDV with prosecution.”).
366. Id.
367. Id. at 426 (“[T]he Government conceded that the challenged application of the
Controlled Substances Act would substantially burden a sincere exercise of religion by the UDV.”).
368. Id.
369. Id. at 430–31 (citing 42 U.S.C. § 2000bb-1(b)).
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bert . . . and . . . Yoder.’”370 The Court then noted the “well-established
peyote exception”371 to the Controlled Substances Act.372 While not
doubting that “there may be instances in which a need for uniformity
precludes the recognition of exceptions to generally applicable laws
under RFRA,”373 the Court held that the Government had not met its
burden to justify precluding the UDV from receiving or using the
hoasca.374
Boerne and Gonzales together suggest that RFRA applies to federal375 but not state376 law, and that RFRA may require an individualized assessment to determine whether the Government has
sufficiently important interests to justify imposing a burden on an individual’s free exercise.377 Boerne suggests that a claim that the challenged law substantially burdens a religious practice “will often be
difficult to contest.”378 Regrettably, the Boerne Court provided no
clarification about the possible bases for challenging such an
assertion.
In Burwell v. Hobby Lobby Stores, Inc.,379 the Court focused on
whether the Affordable Care Act substantially burdened the free exercise rights of certain for-profit corporations.380 These for-profits objected to providing health insurance that might result in the
destruction of an embryo,381 and then suggested that “the HHS
[Health and Human Services] mandate demands that they engage in
conduct that seriously violates their religious beliefs.”382 The Court
370. Id. at 431 (citations omitted) (citing 42 U.S.C. § 2000bb(b)(1)).
371. Id. at 434.
372. See 21 C.F.R. § 1307.31 (1985) (“The listing of peyote as a controlled substance in
Schedule I does not apply to the nondrug use of peyote in bona fide religious
ceremonies of the Native American Church, and members of the Native American
Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is
required to obtain registration annually and to comply with all other requirements of law.”). The Gonzales Court cited to this provision. See Gonzales, 546
U.S. at 434.
373. Gonzales, 546 U.S. at 436.
374. Id. at 439 (“[W]e conclude that the courts below did not err in determining that
the Government failed to demonstrate, at the preliminary injunction stage, a
compelling interest in barring the UDV’s sacramental use of hoasca.”).
375. See supra note 364 and accompanying text.
376. See supra note 362 and accompanying text.
377. See supra note 369 and accompanying text.
378. City of Boerne v. Flores, 521 U.S. 507, 534 (1997).
379. 134 S. Ct. 2751 (2014).
380. Id. at 2775 (“Because RFRA applies in these cases, we must next ask whether the
HHS contraceptive mandate ‘substantially burden[s]’ the exercise of religion.”
(citing 42 U.S.C. § 2000bb-1(a)) (1993))).
381. Id. (“They therefore object on religious grounds to providing health insurance
that covers methods of birth control that . . . may result in the destruction of an
embryo.”).
382. Id.
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also noted that the refusal to engage in the required conduct might
result in “substantial” fines,383 suggesting that the serious violation of
religious beliefs and the significant penalties for non-compliance each
established that the Affordable Car Act substantially burdened free
exercise.
It was not clear that the insurance requirement forced corporations
to violate their religious beliefs. At most, the corporations were required to provide insurance for their employees, who might themselves decide to use that insurance to pay for particular health care
needs. So Hobby Lobby raised two distinct questions: whether forprofit corporations are protected by RFRA,384 and whether the insurance requirement substantially burdened free exercise.385
Once it declared that for-profit corporations are protected by
RFRA,386 the Court next focused on whether the insurance requirement burdened free exercise. HHS argued that “the connection between what the objecting parties must do (provide health-insurance
coverage for four methods of contraception that may operate after the
fertilization of an egg) and the end that they find to be morally wrong
(destruction of an embryo) is simply too attenuated” to constitute a
substantial burden.387 The Court interpreted that argument to suggest the religious belief asserted was not reasonable.388 But that interpretation misconstrued the claim, which instead posited that
paying for insurance was not sufficiently closely connected to the religious beliefs asserted for ACA to be construed as substantially burdening free exercise.389
Perhaps seeking to provide an additional basis upon which to find
that the corporations’ religious exercise was substantially burdened,
the Court accepted “that providing the coverage demanded by the
HHS regulations is connected to the destruction of an embryo in a way
that is sufficient to make it immoral for [the objecting corporations] to
provide the coverage.”390 Further, deference to the professed beliefs
was required—these “companies sincerely believe that providing the
383. See id. at 2776.
384. Id. at 2767 (“The first question that we must address is whether this provision
applies to regulations that govern the activities of for-profit corporations like
Hobby Lobby, Conestoga, and Mardel.”).
385. Id. at 2775 (“Because RFRA applies in these cases, we must next ask whether the
HHS contraceptive mandate ‘substantially burden[s]’ the exercise of religion.”
(citing 42 U.S.C. § 2000bb-1(a))).
386. Id. (“[W]e hold that a federal regulation’s restriction on the activities of a forprofit closely held corporation must comply with RFRA.”).
387. Id. at 2777.
388. Id. at 2778 (“This argument . . . addresses . . . whether the religious belief asserted in a RFRA case is reasonable.”).
389. See id. at 2777 (“[T]he end that they find to be morally wrong (destruction of an
embryo) is simply too attenuated.”).
390. Id. at 2778.
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insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious
beliefs are mistaken or insubstantial.”391
Once it established the federal statute substantially burdened free
exercise, the Court then focused on whether the government regulations were closely tailored enough to promote sufficiently important
interests. The Court granted for the sake of argument that the implicated governmental interest was compelling,392 and then examined
whether the requirement was sufficiently narrowly tailored to pass
muster. Concluding it was not,393 the Court noted that there was another way that women could receive insurance coverage for their contraceptive needs. “The most straightforward way of doing this would
be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under
their health-insurance policies due to their employers’ religious
objections.”394
The Hobby Lobby Court was not thereby suggesting that any and
all costs could be shifted onto the Government, since “cost may be an
important factor in the least-restrictive-means analysis.”395 However,
saying that the Government was not always required to absorb all
costs did not mean that the Government would never be required to do
so, since “both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.”396
To support its claim that requiring the Government to shoulder the
costs at issue would not be particularly onerous, the Hobby Lobby
Court noted how the Government already shouldered such costs when
the religious beliefs of non-profit corporations were at issue.397 Such
an analysis at least suggests that where Congress has already recognized an exception, the Court will not hesitate to expand it a little to
protect free exercise.
Yet, the Hobby Lobby Court itself demonstrated the difficulties
that might arise when applying the Court’s suggested analysis. The
Court offered an example of a case in which an exemption would not
be required, focusing on Lee. The Court noted that Lee was a free ex391. Id. at 2779.
392. Id. at 2780 (“We will assume that the interest in guaranteeing cost-free access to
the four challenged contraceptive methods is compelling within the meaning of
RFRA.”).
393. See id. (“The least-restrictive-means standard is exceptionally demanding and it
is not satisfied here.” (citing City of Boerne v. Flores, 521 U.S. 507, 532 (1997))).
394. Id.
395. Id. at 2781.
396. Id. (citing 42 U.S.C. § 2000cc-3(c) (2000)).
397. Id. at 2782 (“HHS has already established an accommodation for nonprofit organizations with religious objections.”).
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ercise case rather than a RFRA case,398 but then examined it as if it
were a RFRA case for purposes of illustration.399
The Court explained that no exemption would be made under
RFRA in a case like Lee—“[I]f the issue in Lee were analyzed under
the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to
pay taxes.”400 But this was simply wrong given that Congress had
exempted the self-employed Amish from paying social security
taxes,401 which the Lee Court had itself recognized.402 It would have
been relatively easy and non-burdensome to expand the exemption to
cases involving Amish employers and employees where all parties refused to participate in social security.403
One would have expected the Hobby Lobby Court to say that the
exemption at issue in Lee could have been expanded a little bit, just as
the exemption was expanded a little (to include religious for-profits) in
Hobby Lobby. That the Court would not have held that RFRA required the exemption in Lee suggests that the Court is not as serious
as it claims about doing a case-by-case analysis or, perhaps, that the
inconsistent application under the Free Exercise Clause will now be
the preferred method under RFRA and RLUIPA.
C.
The Circuits’ Quandary
Both RFRA and RLUIPA protections are only triggered when a
substantial burden is imposed on religious exercise. While the Court
has made clear that what qualifies as a substantial burden is the
same under both laws,404 it has not spelled out the criteria for determining when a burden qualifies as substantial.405 This is problematic, because the definition of substantial burden in RFRA and
RLUIPA is determined in accordance with free exercise jurispru398.
399.
400.
401.
402.
403.
Id. at 2784 (“Lee was a free-exercise, not a RFRA, case . . . .”).
See supra text accompanying notes 397–400.
Hobby Lobby, 134 S. Ct. at 2784.
See supra note 219 and accompanying text.
See supra note 219 and accompanying text.
Justice Stevens hypothesized that doing so might have saved the government
money. See supra note 225 and accompanying text.
404. See Holt v. Hobbs, 135 S. Ct. 853, 860 (2015) (“Section 3 [of RLUIPA] mirrors
RFRA and provides that ‘[n]o government shall impose a substantial burden on
the religious exercise of a person residing in or confined to an institution . . . even
if the burden results from a rule of general applicability . . . .’ ” (quoting 42 U.S.C.
§ 2000cc-1(a))).
405. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813–14 (8th Cir. 2008) (“When the
significance of a religious belief is not at issue, the same definition of ‘substantial
burden’ applies under the Free Exercise Clause, RFRA and RLUIPA.” (citing
Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004))).
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dence406 and the Court has offered mixed signals about what counts
as a substantial burden in the free exercise context.407 Because of
those mixed signals, the circuit courts have developed differing approaches to determine when free exercise has been substantially
burdened.
In Adkins v. Kaspar,408 the Fifth Circuit outlined some of the differing approaches used by the circuit courts to determine whether free
exercise has been substantially burdened. The court explained that
notwithstanding “RLUIPA’s eschewing the requirement of centrality
in the definition of religious exercise, the Eighth Circuit adopted the
same definition that it had employed in RFRA cases, requiring the
burdensome practice to affect a ‘central tenet’ or fundamental aspect
of the religious belief.”409 In contrast, the Seventh Circuit suggested
that a practice “that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental
responsibility for rendering religious exercise . . . effectively impracticable.”410 The Ninth Circuit “defined a ‘substantial burden’ as one
that imposes ‘a significantly great restriction or onus upon such exercise.’”411 These approaches might be contrasted with that of the Eleventh Circuit, which “declined to adopt the Seventh Circuit’s definition,
holding instead that a ‘substantial burden’ is one that results ‘from
pressure that tends to force adherents to forego religious precepts or
from pressure that mandates religious conduct.’ ”412
Two points can be made about the circuits using different tests.
First, it is not as if the circuits have adopted different tests because of
a lack of knowledge regarding other tests that might be employed.
Consider Civil Liberties for Urban Believers v. City of Chicago.413 The
Seventh Circuit realized that “the meaning of ‘substantial burden on
religious exercise’ could be read to include the effect of any regulation
that ‘inhibits or constrains the use, building, or conversion of real
406. See Vision Church v. Vill. of Long Grove, 468 F.3d 975, 996–97 (7th Cir. 2006)
(“RLUIPA’s legislative history indicates that the term ‘substantial burden’ was
intended to be interpreted by reference to First Amendment jurisprudence[.]”
(citing 146 CONG. REC. S7774–01 (daily ed. July 27, 2000) (joint statement of Sen.
Hatch and Sen. Kennedy))).
407. Washington v. Klem, 497 F.3d 272, 278 (3d Cir. 2007) (“Supreme Court precedent
with respect to the definition of ‘substantial burden” in the Free Exercise Clause
context has not always been consistent.”).
408. 393 F.3d 559 (5th Cir. 2004).
409. Id. at 568 (citing Murphy, 372 F.3d at 988, cert. denied, 543 U.S. 991 (2004)).
410. Id. (citing Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752, 761
(7th Cir. 2003), cert. denied, 541 U.S. 1096 (2004)).
411. Id. (citing San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034
(9th Cir. 2004)).
412. Id. at 568–69 (citing Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,
1227 (11th Cir. 2004), cert. denied, 543 U.S. 1146 (2005)).
413. 342 F.3d 752.
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property for the purpose of religious exercise.’ ”414 However, the court
reasoned that “[a]pplication of the substantial burden provision to a
regulation inhibiting or constraining any religious exercise, including
the use of property for religious purposes, would render meaningless
the word ‘substantial.’ ”415 That was “because the slightest obstacle to
religious exercise incidental to the regulation of land use—however
minor the burden it were to impose—could then constitute a burden
sufficient to trigger RLUIPA’s requirement that the regulation advance a compelling governmental interest by the least restrictive
means.”416 Because such a forgiving standard would write “substantial” out of the text, the Seventh Circuit concluded that “in the context
of RLUIPA’s broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one
that necessarily bears direct, primary, and fundamental responsibility
for rendering religious exercise . . . effectively impracticable.”417
The Seventh Circuit feared that too deferential a standard would
mean that even insubstantial burdens would trigger the relevant
test.418 However, even when a circuit has adopted an apparently less
demanding standard with respect to what qualifies as a substantial
burden, a court might nonetheless interpret that standard in a way
that proves to be much more demanding than might originally have
been thought. Consider Midrash Sephardi, Inc. v. Town of Surfside,419 in which the Eleventh Circuit offered a seemingly less demanding standard for a burden to qualify as substantial. The court
said that “a ‘substantial burden’ is akin to significant pressure which
directly coerces the religious adherent to conform his or her behavior
accordingly.”420
The issue in Midrash Sephardi was whether a synagogue, which
leased space in one area of town,421 could be required to move to a
different location because of a zoning requirement. Because of a religious requirement that individuals walk to services on the Sabbath and
holidays,422 moving the synagogue would make it very difficult for
414.
415.
416.
417.
418.
419.
420.
421.
Id. at 761 (citing Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996)).
Id.
Id.
Id.
See supra text accompanying notes 415–17.
366 F.3d 1214 (11th Cir. 2004).
Id. at 1227.
Id. at 1220 (“Midrash was formed in 1995 and leases the second floor of 9592
Harding Avenue from Ohio Savings Bank.”).
422. Id. at 1221 (“Orthodox Judaism forbids adherents to use cars or other means of
transportation during the weekly Sabbath and religious holidays; thus, adherents prefer to gather for worship and religious study in synagogues close enough
to their homes to allow them to walk to services.”).
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some of the congregants to attend services, e.g., the old or infirm.423
This would affect not only the individual congregant’s religious exercise, but might also affect the health of the congregation as a whole if
enough congregants were dissuaded from attending services.424 In
addition, it was not clear that there was any suitable location for the
synagogue within the area zoned for houses of worship.425
The Eleventh Circuit noted that under RLUIPA “an individual’s
exercise of religion is ‘substantially burdened’ if a regulation completely prevents the individual from engaging in religiously mandated
activity.”426 Notwithstanding the difficulties posed by “Floridian heat
and humidity [for those aged and infirm who] . . . walk to services, the
burden of walking a few extra blocks, made greater by Mother Nature’s occasional incorrigibility, is not ‘substantial’ within the meaning
of RLUIPA.”427 The court offered the consolation that “congregants
wishing to practice Orthodox Judaism [can] . . . move where [the] synagogues are located.”428 Apparently, the burden imposed by having to
acquire a new home or by simply forgoing attending services on the
Sabbath did not constitute “significant pressure which directly coerces
the religious adherent to conform his or her behavior accordingly.”429
While the Eleventh Circuit’s substantial burden test seems more forgiving on its face, a separate issue involves how that test is then applied in practice.
The Ninth Circuit also declines to use the Seventh Circuit standard. In International Church of Foursquare Gospel v. City of San Leandro,430 the Ninth Circuit rejected the applicability of Civil Liberties
for Urban Believers (which used the Seventh Circuit test)431 for determining whether a substantial burden had been placed on a religious
institution precluded from building a church in the only suitable place
in the city.432 The court remanded the case for a determination of
423. See id. at 1227–28 (“[T]hey suggest that the additional blocks would greatly burden congregants who are ill, young or very old.”).
424. Id. at 1227 (“[T]he significant decrease in attendance would require . . . ceas[ing]
operations altogether.”).
425. Id. at 1221 (noting the congregation’s claim that “any attempt to relocate in the
permitted RD–1 district would be futile because suitable land is unavailable”).
426. Id. at 1227 (citing Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995)).
427. Id. at 1228.
428. Id.
429. Id. at 1227.
430. 673 F.3d 1059, 1069 (9th Cir. 2011) (“This higher standard [used in Civil Liberties for Urban Believers] has been rejected in this circuit.” (citing Guru Nanak
Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 989 n.12 (9th Cir. 2006))).
431. See id. at 1068–69.
432. See id. at 1068 (“The Church’s realtor presented significant evidence that no
other suitable properties existed: he examined each of the 196 parcels rezoned for
assembly use, and found them unsuitable for the needs of a large religious
congregation.”).
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FREE EXERCISE AND SUBSTANTIAL BURDENS
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whether the city had used the least restrictive means to promote a
compelling interest.433 In contrast, the Eleventh Circuit, which also
does not use the Seventh Circuit test,434 nonetheless rejected the argument that a substantial burden had been placed on a religious institution even though there seemed to be no suitable location for the
synagogue in the only area where the local zoning law permitted it to
go.435
It is unsurprising that the circuits have developed differing interpretations of RLUIPA, given the lack of guidance from the Court.
That might happen even if the circuits agreed about the relevant criteria, e.g., some circuits might emphasize certain factors while others
might emphasize other factors. But the different tests cannot merely
be attributed to contrasting emphases and the Court has done too little to provide helpful guidance. Indeed, the Court has refused to grant
certiorari in several of the cases that apply differing tests,436 almost
guaranteeing that the same federal law will offer protection in some
circuits but not in others even if the factual scenarios are relevantly
similar.
IV. CONCLUSION
There is no clear understanding of what counts as a substantial
burden on religious exercise under federal law. That is due in part to
the Court’s inconsistent approach in the free exercise jurisprudence
and to its insufficient guidance with respect to the proper interpretation of RFRA and RLUIPA. This is unacceptable, because it almost
guarantees that the circuits applying the same law will arrive at differing conclusions in relatively similar cases.
There is yet another potential difficulty that seems underappreciated. The Court has suggested that RFRA and RLUIPA use the
same standard to determine whether a substantial burden has been
imposed on religious exercise.437 But in Hobby Lobby, the Court was
very deferential with respect to whether individual religious practices
had been substantially burdened. The Court suggested both that it
was not for the Court to judge whether beliefs were mistaken or insubstantial,438 and that it would be a substantial burden for the government to require actions that would amount to a perceived serious
433. Id. at 1071.
434. See supra note 412 and accompanying text.
435. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1220 (11th Cir.
2004) (noting the congregation’s claim that “any attempt to relocate in the permitted RD–1 district would be futile because suitable land is unavailable”).
436. See supra text accompanying notes 409–10 & 412.
437. See supra text accompanying note 353.
438. Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2779 (2014).
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violation of religious belief.439 Together, these propositions suggest
that substantial deference is owed to claims that particular requirements substantially burden religious exercise, which in effect makes it
very easy for a claimant to satisfy the substantial burden test.
The government can impose substantial burdens on free exercise if
the government requirement is narrowly tailored to promote compelling interests. But this is a very difficult test to meet, and Hobby
Lobby, if taken seriously, could require a radical reinterpretation of
federal law. As the Court has repeatedly recognized, a whole host of
laws might substantially burden someone’s sincerely held religious beliefs,440 especially if deference must be given to what constitutes a
substantial burden. The Court should make clear at its earliest opportunity whether federal law should be understood to have incorporated
this major change.
If the Court’s free exercise jurisprudence is any guide, Hobby
Lobby will not require a major shift in our understanding of federal
law. Instead, it will be trotted out in particular cases and ignored in
others, replicating the Court’s free exercise practice of offering incompatible analyses to decide cases in light of some unarticulated guide.
Those hoping for consistent application of a clearly stated principle in
cases implicating federal constitutional or statutory law are unlikely
to see those hopes realized. Instead, the Court will only make an increasingly chaotic area of law even more chaotic. Both individuals
and the country as a whole deserve more from the Court. If history is
any guide, however, they are unlikely to get it.
439. Id. at 2775.
440. See supra text accompanying note 216 & 281.